Sacramento Criminal Defense Lawyer Blog

With abundant rain this winter, California's lakes, reservoirs, and rivers are quickly filling up. And as the weather gets warmer, more people will take out their boats for a relaxing day on the water. Everyone who enjoys boating, though, needs to keep in mind California's strict laws regarding boating under the influence of alcohol or drugs.

Harbors and Navigation Code 655 lays out the rules regarding operation of watercraft in the California. This law makes it:

• A crime to operate a recreational vessel with a blood alcohol content of 0.08% or higher.
• A crime to operate a commercial vessel with a blood alcohol content of 0.04% or higher.
• A crime to operate a water ski or aquaplane after ingesting any amount of alcohol or drug.
• A crime to use a water ski or aquaplane in a "reckless or negligent manner" that poses a danger to others.

Many people assume that they get a free pass from law enforcement when consuming alcohol on the local rivers because it's not illegal to have an open container on a boat. The reality is different though. BUI is considered especially dangerous because of the speeds that boats can attain, the difficulty of stopping a boat quickly, and the lack of distinct lanes of traffic compared to streets and freeways.

Penalties for BUI are severe with fines up to $1000 and jail time of up to six months. In addition, though a 2008 California Supreme Court case made it clear that the DMV is not allowed to suspend a person's automobile driver's license for conviction of a BUI, a BUI conviction can be counted as a "prior" if the person is arrested for DUI within the next 10 years.

The sheriff's department of each county is responsible for patrolling waterways in its jurisdiction. The Sacramento Sheriff's Department, for example, oversees the Sacramento River north of downtown Sacramento all the way down through the delta region at the county's southern border. The Yolo County Sheriff's Department covers the Sacramento River, Cache Canyon, Putah Creek, and other waterways within the county. The Yolo Sheriff's Department just announced, in fact, that it is using a grant from the state to purchase additional watercraft for law enforcement and rescue operations.

If you have been arrested for boating under the influence, call Nancy King at (916) 442-1200 for a free and confidential consultation.

The section of the California Vehicle Code that governs driving under the influence of alcohol also sets the rules for driving under the influence of drugs, or DUID. But DUID cases differ from alcohol related cases in several important respects, each of which influences the defense that can be mounted against the charges.

When someone is cited for driving under the influence of alcohol, two criminal charges are filed: 23152 (a) and 23152 (b). Section (a) declares that, "It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage or drug, to drive a vehicle." Section (b) makes it illegal to drive with a blood alcohol level of 0.08 or greater.

Driving under the influence of drugs lacks the specific measure of intoxication laid out in section (b). Therefore, conviction of DUID rests solely on law enforcement's ability to demonstrate that a person's capacity to operate a vehicle safely was impaired by the presence of drugs in his or her system. In other words, all DUID cases rely solely on section (a) and its prohibition of driving under the influence of a drug.

It is important to note that DUID can arise from impairment by both legal and illegal drugs. Use of marijuana or methamphetamines can lead to arrest for DUID, but so can use of prescription and non-prescription painkillers, anti-depressants, allergy medications, antibiotics, or any other drug. Any chemical that diminishes a person's ability to safely operate a vehicle can be used as the basis for arrest and conviction for DUID.

Continue reading "Driving Under the Influence of Drugs (DUID)" »

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. (See our November 27, 2009 post for a detailed explanation of DMV hearings.)

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.

A person charged with a DUI in California faces two parallel reviews of his case. One path takes him through the court system in the county where the alleged crime occurred. The district attorney's office looks over the facts of the case and any criminal history of the defendant and determines whether to file criminal charges. If charges are filed, the matter is dealt with in the local superior court, with a defense attorney representing the defendant, the prosecutor trying for a conviction, a jury determining guilt or innocence if a trial is necessary, and a judge overseeing the entire process.

The other path for a DUI, less well known to the public, takes the defendant through the Department of Motor Vehicles and what's called an administrative per se hearing. The purpose of the admin per se hearing is strictly to determine whether DMV will suspend the defendant's driver's license. It does not determine whether a person is guilty of a crime and has no bearing on a person's criminal record. The DMV hearing is completely separate from what occurs in the court process described above. In fact, a jury could find a defendant not guilty of a DUI and DMV could still suspend the driver's license.

This is what happens leading up to the hearing:

• All people arrested for DUI in California automatically have their driver's licenses taken by the police/sheriff/CHP and receive a temporary driving permit good for 30 days.
• The default action after that is that DMV will automatically suspend defendants' driver's licenses, with the length of the suspension depending on whether the defendant has had previous DUI violations and whether he submitted to a blood alcohol test.
• To avoid this automatic license suspension, DUI defendants must submit a request to DMV for an admin per se hearing within 10 calendar days of the arrest.
• Once the hearing has been requested, DMV issues another temporary license that's good until the outcome of the hearing.

The hearing is overseen not by a judge but by a DMV Hearing Officer. There is no jury and no prosecuting attorney. The Hearing Officer reviews the evidence, listens to the arguments presented by the defendant's attorney, and decides whether to suspend the license. The standard used by the Hearing Officer is different than that used in court. Where court trials use the demanding standard of guilt beyond a reasonable doubt, DMV hearings use preponderance of evidence. This means that all that is needed to suspend the driver's license is for the Hearing Officer to believe that more evidence of guilt exists than does evidence of innocence. Moreover, different rules of evidence apply to the DMV hearing compared to a court trial. For example, hearsay statements - when one person describes statements made by another person - are prohibited in court trials but are admissible in DMV hearings.

Because of this complicated process and the less stringent evidence standards, an experienced and knowledgeable defense attorney is critical to presenting the best possible case for preserving a defendant's driver's license. If you have questions about the DMV hearing process or other issues related to California DUI law, call the Law Office of Nancy King.