Sacramento Criminal Defense Lawyer Blog

A wet reckless is a negotiated plea bargain that in certain cases is an advantageous outcome to a DUI arrest. The term wet reckless doesn't actually appear in the California Vehicle Code but derives from the provisions of section 23103.5 VC. It is essentially a conviction of reckless driving with alcohol related circumstances.

As with all negotiated pleas, a wet reckless is seen as offering something to both sides. Though the prosecution gives up the chance to get a DUI conviction, it does get a conviction of the lesser charge of reckless driving, as well as the ability to count the wet reckless as a DUI if the defendant gets another DUI within ten years. And though the defendant agrees to plead guilty to reckless driving involving alcohol, he gets the benefit of avoiding some of the harsher penalties that come with a DUI.

Typically, district attorney's offices are open to negotiating a wet reckless when the defendant's blood alcohol level is at or just above the legal limit of .08 and/or the circumstances of the arrest and the quality of the evidence weaken the prosecution's case.

Advantages of a wet reckless over a DUI:

• Jail sentences are typically shorter or waived altogether since a wet reckless does not have a minimum required jail term like a DUI.
• Probation periods can be shorter, reducing the chances that a person will do something to violate the terms of probation and thus incur additional penalties.
• There is no mandated suspension of the driver's license, obviously important for people who drive to work or who drive vehicles as part of their employment, such as truck drivers or delivery company workers.
• People with professional licenses (for example, attorneys, doctors, and pharmacists) can avoid sanctions that would normally come with a DUI conviction.
• Fines are lower, usually half of those for a DUI.

Disadvantages of a wet reckless:

• Like a DUI, a wet reckless can result in increased insurance rates.
• If another DUI is received within 10 years, the wet reckless conviction is treated like a prior DUI conviction when determining penalties.
• The DMV, through its Administrative Per Se hearing, can still suspend the driver's license of someone who accepts a wet reckless plea.

It's important to understand that a wet reckless can only be negotiated by your criminal defense lawyer before trial begins. The police cannot arrest you for a wet reckless and it is not a sentencing option after trial. If you've been arrested for a DUI and have questions about a wet reckless plea, call the Law Office of Nancy King at 916-442-1200.

Two trials from southern California this month highlight the dangers of bicycle riding on California's crowded roads and the consequences for motorists who injure or kill bicyclists.

One incident, from 2008, involved Christopher Thompson, a doctor from the wealthy Los Angeles enclave of Brentwood. While driving to work on Mandeville Canyon Road, Thompson apparently became angry at a group of bicyclists, pulled his car ahead of them and then slammed on his breaks, causing serious injuries to two of the riders. Thompson claimed that the cyclists were making it hard for him to pass and making obscene gestures toward him, and he was stopping merely to get a photograph as evidence. The jury nonetheless found him guilty of assault with a deadly weapon and mayhem, and the judge sentenced him to five years in prison.

The other incident, from 2009 in San Diego County, involved a man who was driving his BMW in a bike lane and hit and killed a cyclist. Since the driver claimed to have never seen the cyclist and wasn't under the influence of drugs or alcohol, he was found to be merely negligent, meaning he was inattentive and careless rather than reckless or willfully hurtful. His conviction of misdemeanor manslaughter comes with three years probation, fines of $700, and mandated community service of 100 hours.

Both cases draw attention to the need for more bike lanes throughout the state and improved education of drivers of the need to share the road with cyclists. Bicyclists must also be aware of the need to obey all traffic laws. As California's roads become more congested, and more people take to riding their bikes to improve their health and save on transportation costs, we have to figure out how these two modes of transportation can coexist.

"Los Angeles Doctor Gets 5 Years For Injuring Cyclists," Los Angeles Times, January 9, 2010

"Criminal Penalties Limited When Cars Hit Cyclists," North County Times, January 16, 2010

A ruling by the California State Appellate Court for the Second District confirms that expungements may be granted for those people who violated the terms of their probation so long as their conduct since that time demonstrates that they have reformed and become contributing members of society.

The defendant in this case, Myrle Dennis McLernon, had filed a 1203.4 motion seeking expungement of his criminal record, which means that his conviction would be changed to a dismissal. (See our post from September 25, 2009, for a detailed look at the expungement process.) In most instances getting an expungement requires a person to complete probation, pay all fines and restitution, not spend time in state prison for the offense, and not currently have any criminal charges pending.

But the law also allows for an expungement if the terms of probation were violated but the court determines that expunging the record would "serve the interests of justice." What this means is that the defendant has the opportunity to submit evidence demonstrating how he/she has become a good citizen and turned away from crime.

In People v. McLernon, though, the Attorney General's Office put forward the fanciful argument that this evidence of changed behavior should only come from the period of probation. In other words, what the defendant did after probation ended should not be considered.

The appellate court dismissed this argument, saying that nothing in the law precludes courts from taking into account actions after the probation period has ended. From our perspective, this is the only position that makes sense, since a change in behavior for the good would in most cases come after the time when probation was violated.

The bottom line is this: a person who wants to expunge his criminal record but failed to complete probation can still have his attorney file a 1203.4 motion and present accompanying evidence of that person's reformed life and commitment to the responsibilities of citizenship. The judge will then weigh the evidence and determine whether the interests of justice call for an expungement of the record.

Obviously, hiring an attorney with experience with expungements is crucial if the motion is to be successful, particularly when there are issues of probation violation. Call the Law Office of Nancy King for a review of your case.

The new year brings a slew of new laws for Californians, more than 800 in fact. In addition to SB 598, which we profiled in our January 4 post, these new laws include:

SB 159 and SB 240 - require California motorists to slow down and, if possible, move to a lane away from emergency personnel, CalTrans workers, and tow truck drivers.

AB 576 - defines cities and counties as victims of graffiti, allowing them to seek restitution from taggers.

AB 962 - requires sellers of ammunition to keep a record of sales and ask for identification from purchasers.

AB 58 - defines participation in a sports betting pool (like an office might organize for the Super Bowl) as an infraction, as long as the pool is for less than $2500 (previous law categorized this as a misdemeanor or felony).

And finally our favorite (though it doesn't deal with criminal law), AB 606, which creates the California Blueberry Commission to "carry out programs of education, promotion, marketing, and research relating to blueberries." Believe it or not, the text of this law is over 7000 words! The Blueberry Commission is estimated to cost $1.2 million, paid for by the blueberry industry.

The Ninth Federal Circuit Court of Appeals issued a decision last month that sets important limits on the use of Tasers by law enforcement. The court's decision restricts the use of Tasers to situations in which there exists an "immediate threat to the safety of the officers or others." In other words, depending on the circumstances, non-lethal force can still be excessive force.

The ruling came as a result of a 2005 confrontation between Carl Bryan and City of Coronado Police Officer Brian McPherson. McPherson, who was stationed at an intersection checking for seat belt law compliance, saw that Bryan was not wearing a seat belt and ordered him to pull his vehicle over. Bryan became agitated because (1) he had received a speeding ticket earlier that morning, and (2) he had been locked out of his house and was wearing only boxers and shoes. (Click on the link below to read the court's decision and get all the details.) McPherson claims that after some back-and-forth Bryan, who was standing about 20 feet away, took a step toward him. Bryan claims that he did not. McPherson nonetheless fired his Taser at Bryan, who suffered temporary seizure and fell face forward, breaking four front teeth.

The court stated that though categorized as non-lethal force, and thus less severe than firearms, Tasers are nonetheless "more invasive" and capable of inflicting greater pain and harm than other methods, such as pepper spray. The X26 Taser used by McPherson shoots steel barbs that deliver a 1200-volt charge that causes extreme pain and temporary paralysis. Tasers can even cause death; eight people have died in the Sacramento region since 2003 after being stunned with Tasers by law enforcement.

In the incident between Bryan and McPherson, the court determined that use of the Taser violated Bryan's Fourth Amendment protection against excessive use of force, which arises from its prohibition of unreasonable searches. The court went on to say that while use of Tasers in some situations is warranted to prevent the need to employ lethal force, many confrontations, including the one between Bryan and McPherson, can be defused through less forceful means.

The bottom line is that the Ninth Circuit Court has made it clear that non-lethal force can still be excessive force in some instances. The decision is effective throughout the Ninth Circuit Court region of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. It is possible that the U.S. Supreme Court could take up the issue if it receives requests for appeal on this case or others like it.

If you have questions about his topic, call the Law Office of Nancy King.

Bryan v. McPherson, U.S. Ninth Circuit Court of Appeals, December 28, 2009

"Deaths Following Use Of Tasers," Sacramento Bee, January 6, 2010

A new California law gives state residents convicted of second and third DUIs a new option that allows them to obtain a restricted license sooner than under previous law.

Until now, penalties for a 2nd DUI included a mandatory one-year suspension of driving privileges, while a 3rd DUI had a mandatory two-year suspension.

SB 598, which takes effect July 1, 2010, allows people to reduce the suspension time if they agree to have an Ignition Interlock Device (IID) installed on their vehicles and maintain enrollment in a DUI education program. Specifically, someone convicted of a 2nd DUI could get a restricted license after 90 days and someone convicted of a 3rd DUI could get a restricted license after 6 months.

IIDs require that a person blow into an alcohol detection device before starting a vehicle; if any alcohol is detected, the vehicle will not start. Restricted licenses allow people to drive in the course of their employment and to and from their alcohol education classes.

[Update: Our reading of the law as of June 11, 2010, is that it will apply to people arrested on or after July 1, 2010, when the law takes effect. That could change, though, as the law's implementation date nears and different state officials have input. - See the June 11 post for additional information.]

The full text of the bill, which amends California Vehicle Code 13352, can be accessed by clicking here.

If your license has been suspended because of a DUI, call the Law Office of Nancy King to learn about your options under this new law.

You can also read about AB 91 - the law which creates an IID test program in Sacramento, Los Angeles, Alameda, and Tulare counties - by reading our October 13 and 14 posts.