In California, there are lower consequences for pleading to Wet Reckless (VC 23103 / VC 23103.5) than to a DUI conviction.
A DUI carries a Mandatory 3 month Alcohol class, Wet Reckless a 12 hour class.
There are usually lower fines for a Wet Reckless.
A Wet Reckless does not have the same insurance consequences.
A Wet Reckless doesn’t result in a Court ordered Suspension of your license, but you may still face a Suspension at the DMV.
A wet reckless doesn’t result in Ignition Interlock Device (IID) requirements, but if your license is Suspended by the DMV you may still need an Ignition Interlock Device.
What that makes a “Wet” Reckless different for your Criminal record (vs. a “Reckless”) is that a ‘Wet’ Reckless is Priorable as a DUI. So if you get arrested for DUI again within 10 years, you can be charged as though the Wet Reckless is a prior conviction of DUI.,/p>
If you plead guilty to “Wet Reckless” and take the Misdemeanor conviction, it is a Conviction. If you fight and win, you can avoid having a Conviction on your record.
If you lose, it’s a DUI Conviction.
Remember, if the DUI charges are dismissed and you had a DMV Hearing you lost, you can get a second DMV Review Hearing by filing a DS 702.
If you obtained a plea pursuant to Helmandollar v DMV, 7 Cal.App.4th 52, you need to submit the DS 702 showing that there was a not guilty on the .08 or above charge. A Helmandollar Plea involves negotiating a plea to Wet Reckless or something else and rather than dismissing the .08 or above count, there is a Mini-Bench Trial wherein the DA doesn’t present any evidence ,the Defense makes a PC 1118.1 Motion and the Defendant is Acquitted of the charges. The Not Guilty finding is submitted to the DMV and the Suspension is set aside.
Be aware that the DMV sometimes requires completion of an alcohol awareness class to get your license back after a plea to a Wet Reckless where there is a DMV Suspension.
22 May 2014
If you are innocent then you may need a Lawyer more than some who may be guilty. Chances are you’re not guilty.
It is not illegal to drink and drive, only to drive over the legal limit or while your ability to drive is impaired.
The tests used to measure blood and breath are inaccurate. They can’t go back in time and measure the alcohol in your system when your were actually driving. The State has to rely on voodoo trickery called ‘retrograde extrapolation’ (retro = back, grade = look, extrapolate = guess) to say you’re over the limit.
Even if you believe you drove while over the legal limit, you need a Lawyer to protect your rights and your freedom. The cops need a valid reason to stop you. The cops have to apply the field sobriety exercises (balance tests) fairly and properly. The cops need to follow the proper procedures established to insure your rights are protected.
A DUI Defense is complicated and highly scientific.The punishments can be severe.
We will ensure you get the skillful Defense your case deserves at every stage of the proceedings.
Even if you decide you don’t need a lawyer, make an informed decision: call to make sure you answer the question Do I Need A Lawyer? correctly.
Our rates are competitive, with no hidden fees. Our employees are friendly and will be there to help you every step of the way.
What should you do if you are stopped one of the CA DUI checkpoints?
Understand that the cops are not just looking for people who’ve been drinking they are also looking for people who don’t have a valid license and those who are or could be under the influence of drugs. LA area cops are equipped with mouth swabs to detect the presence of marijuana.
First, all DUI checkpoints have to have a release valve for those people who do not want to be inconvenienced by the wait at the checkpoint. If you notice a traffic slow down or stoppage and it is not usual for the time and area, there is probably a DUI checkpoint up ahead. Start looking for ways to legally avoid the checkpoint. The checkpoints are usually placed where there are minimal avenues for escape. It is important to avoid the checkpoint legally, because if the cops observe you breaking the law to avoid the checkpoint they will stop you for the violation and begin a DUI investigation. The cops ARE looking for people who avoid the checkpoints, be sure of that.
Second, if you haven’t been drinking and don’t feel like making a point about your vanishing constitutional rights and the increase of the domestic police state, you probably want to cooperate. Cop: “Have you been drinking?” You: “No.” Cop: “Have a nice night.”
If you have a smart phone you should turn on the video/audio feature of the phone and place it somewhere where the dialogue between you and the cop can be heard. Better if there’s someone with you and they can surreptitiously film the encounter.
Have your license, registration and insurance documents in your hand when you get to the front of the line. The time to start looking for your documents is not when the cop’s flashlight is shining in your car. He will describe that you fumbled for your license, that’s not good. While you’re waiting in line may also be the time for gum and Visine if you have it.
If you have been drinking, you should give the cops as little evidence to convict you of DUI as possible. That’s what they’re there to do — gather evidence to be used against you. Remember, in a checkpoint situation the cops have not observed ANY bad driving giving rise to a lawful traffic stop. Don’t answer their questions (“Officer, am I free to go?” “No?” “Then, officer, I would rather not answer your questions.”). As in all situations where someone is going to report what you said, once you start talking to them, they are free to lie about what you said, but if you don’t talk to them at all then its much more difficult for them to lie.
Don’t partake in their field sobriety games (“Officer, I choose not to perform these field sobriety exercises, thank you very much.”). Don’t take the preliminary alcohol screening test (“Officer, I am free to refuse to take this test without consequence, correct?” “I choose not to take this test.”).
It is important to distinguish between the preliminary alcohol screening test and the test administered post arrest. Inquire whether you are under arrest. If no, don’t take the test. If under arrest you have to take the test or risk losing your license for one year. At this point, you have provided them with one semi-objective piece of evidence that you were under the influence at the time of driving. That’s the best case scenario for any DUI arrest.
If you have any questions about checkpoints, please call me at (213) 479-5322.
29 Nov 2012
What do surprise balance tests performed for the first time at the side of the road have to with sobriety?
Nothing. There are numerous problems with field sobriety testing including, but not limited to, (1) There is no baseline of your ability to do the FSEs when you have zero alcohol in your system. (2) The tests are supposed to be standardized, that is the cops are supposed to do them exactly the same every time. They rarely do the tests according to how NHTSA says they are supposed to be done. (3) The cops are looking for evidence against you. The only thing recorded will be what they think you did wrong. (4) The tests measure balance, but they take away your means of keeping balanced: feet shoulder width apart, looking at the horizon, and keeping your head level for inner ear balance.
The bottom line is: If you are stopped by the cops, and if the cops ask you to perform these exercises, politely decline to do the FSEs UNLESS you have not had anything to drink at all. The results can only hurt you.
A Field Sobriety Test is a very subjective set of divided attention tests. (For the record, most DUI Defense Lawyers refer to them as exercises, FSEs not tests). The officers will always say they aren’t passing you or failing you, they are ‘looking for CLUES’. And the cops will always say you “exhibited all the clues” of intoxication in their field sobriety testing.
There are two kinds of FSEs: Standard and Non-standard. Standard FSEs are those that have been shown to have some correlation to being under the influence in a NHTSA (National Highway Traffic Safety Administration) non-peer reviewed study.* The Standard FSEs are: the Horizontal Gaze Nystagmus (HGN); the Walk and Turn; and the One Leg Stand.
The Non-Standard tests include; Romberg balance, touching your nose with your finger; touching your thumb with your finger; or, reciting the alphabet (backwards or forwards, start with ‘Q’).
Horizontal gaze nystagmus is the test where the cop holds the pencil or his finger 12-15 inches from your face, level with your eyes and moves the it side to side. The cop will say they are looking for 6 ‘clues’ in this test, 3 in each eye: equal pupil size, lack of smooth pursuit, and nystagmus (jerking) of the eye at the extremes. There are really about 20 things they are looking for, including failing to follow instructions and swaying from side to side.
Exhibiting any ‘clue’ can be used in determining you are under the influence. 50% of the population has nystagmus at the extremes when sober. There are dozens of things other than alcohol that cause nystagmus, including it being late at night. (Hint: most DUI stops are late at night.) This is actually a test properly performed by trained Opthamologists (eye doctors) using sophisticated equipment.
In the Walk and Turn test, you walk 9 steps up, execute a complicated turn and walk nine steps back. Not standing with your left foot in front of right, missing toe with heel (more than 2″), not turning around with small steps, and losing balance are all ‘clues’ that you are under the influence. You are not given the grading criteria during the instruction phase. Most people can’t do this sober. Older people, overweight people or people with balance, leg or foot problems cannot usually do this.
In the One Leg Stand, the cop instructs you to raise your leg and count until he says stop. There are 18 ‘clues’ the officer is looking for. Mostly he is seeing whether you are able to keep your balance past 25 seconds. In this test you are instructed that if you put your foot down, just to pick it up and keep going. One of the ‘clues’ that will be held against you is putting your foot down.
The Non-Standard field sobriety tests are even more absurd.
In the Romberg, the cop instructs you to close your eyes and tilt your head back, count silently in your head and estimate 30 seconds. There are 18 ‘clues’ the cop is looking for here. Mostly they want to see whether your time sense is affected by being under the influence. They will judge you on how close to 30 seconds your estimation is. The instructions say that if you are within 10 seconds +/- you pass.
For more information about the field sobriety tests or to set up a consultation with me to talk about your specific case – Call 213-479-5322 or fill out the easy form at right.
* Marceline Burns, one of the psychologists who developed the battery used in field sobriety testing has said the tests don’t show either a specific blood alcohol concentration or impairment for the purpose of driving.
28 Nov 2012
A good case explaining how to fight an checkpoint arrest came down recently in the San Francisco Appellate Division entitled People v. Alvaredo. Alvaredo was stopped at a DUI Checkpoint. He was arrested for DUI and his Attorney moved to suppress the evidence, including the breath test, because the cops did not follow the procedures established by the California Supreme Court in Ingersoll v. Palmer for DUI checkpoints. The Trial court denied the Motion to Suppress. The Court of Appeal reversed the denial of the Motion to Suppress because three important and one not-so-important factors were missing.
The Ingersoll factors are:
(1) Whether the decision to establish the checkpoint, the selection of the site, and the procedures for operation are established by supervisory law enforcement personnel;
(2) Whether motorists are stopped according to a neutral formula;
(3) Whether adequate safety precautions are taken, such as proper lighting, warning signs, and signals, and whether clearly identifiable official vehicles and personnel are used;
(4) Whether the location of the checkpoint was determined by a policymaking official, and was reasonable;
(5) Whether the time the checkpoint was conducted and its duration reflect “good judgment” on the part of law enforcement officials;
(6) Whether the checkpoint exhibits sufficient indicia of its official nature (to reassure motorists of the authorized nature of the stop);
(7) Whether the average length and nature of detention is minimized, and;
(8) Whether the checkpoint is preceded by publicity.
In Alvarado, the Court found that the San Francisco Police Department had not followed (1), (4), (7) and of lesser import (8)(Banks)*. Because the Police did not establish the procedures to be used at a command level, did not determine whether the location was beneficial for the purpose of deterrence, did not minimize the length and nature of the detention and failed to publicize the DUI checkpoint in advance, the Court held that the checkpoint was unconstitutional.
The Court admits bewilderment with the prosecution in its holding. Stating that even though the state had access to the same Ingersoll factors, they seemed to put on no evidence to sustain their burden of proof under Wilder.**
Avoid being arrested at a DUI Checkpoint. Because the cops are supposed to give advance notification of where and when a checkpoint will be held, you can avoid checkpoints by checking back here because I post the DUI checkpoints when I learn of them.
Inherent in the checkpoint requirements is also that there must be a release valve where people who do not want to wait in line at the checkpoint can avoid it. The Supreme Court has held that people seeking to avoid a checkpoint cannot be stopped. However, if you violate the Vehicle Code in avoiding the checkpoint, the police can stop you for the violation. So making a U-Turn in the middle of a block, which is illegal, will bring you to the police’s attention.
The way to fight your arrest at a DUI checkpoint is to know the law and know how to use the law to hold the police accountable for following proper procedure. If you’ve been arrested after being stopped at a DUI Checkpoint contact us at (213) 479-5322 to learn how we can fight and win your case for you.
* The Alvarado court properly points out that Banks does not do away with the necessity for advance publication of the checkpoint, it merely states that lack of advance publicity alone will not invalidate the checkpoint.
** Wilder holds that where there is a warrantless search the state bears the burden of proving the justify the search and seizure.
Portable drug tests at DUI Checkpoints are the LAPD’s new way to invade your privacy while you’re a guest at one of their numerous checkpoints (LA and other counties have hundreds of thousands of dollars of checkpoint grant money they need to spend).
The test purports to be able to tell if the subject has amphetamines, marijuana, cocaine benzodiazepine (the active ingredient in prescription drugs like Xanax) and other illegal substances.
Before you swab, remember: the only test you HAVE to take when arrested on suspicion of DUI Drugs is a Blood Test after Arrest. (This is based on the Implied Consent laws, not HAVE to take based on Fourth Amendment grounds.) The swab test when administered at the checkpoint is the equivalent of the PAS handheld breath tester given to those suspected of being impaired by alcohol. Because of that, there should be an admonition stating that you are free to refuse to take the test without consequence. But there isn’t.
There should be an admonition read, because you are free to refuse the test. So refuse to take the test if asked.
Once arrested the Supreme Court has said that taking a sample of your DNA is a constitutionally reasonable seizure. However, the law in California doesn’t provide for the admission of these drug swab tests as evidence in a DUI, like a Blood Test would be admitted. Many foundational issues exist with respect to the admission of a new technique like saliva swabbing for drug detection.
The LA City Attorney has yet to use one of these portable drug test swabs in an actual trial.
If you are going out this weekend, make sure to check here for the location of DUI Checkpoints. If you have questions about checkpoints, DUIs or DUIs with drugs call me at (213) 479-5322 or visit my website at www.DUI-Defense-LA.com.