DUI faq – california penal code 23152

Driving under the influence FAQs California Vehicle Code Section 23152

How can the prosecution prove I was driving when I was not even in my car when they arrested me on suspicion of driving under the influence?

Driving may be established through circumstantial evidence. (See Mercer v. Dept. of Motor Vehicles (1991) 53 Cal.3d 753, 768). Even though it may be that no officer saw you driving, the prosecutor and DMV may rely on circumstantial evidence (as opposed to direct observation) of driving. Examples of circumstantial evidence used to prove driving include the defendant is found asleep in the driver’s seat with the engine running, the vehicle hood is warm to the touch, the defendant is the registered owner of vehicle, and the defendant’s own admission to driving.

What are the possible reduced charges to a DUI?

An experienced DUI attorney will first attempt to dismiss all the charges against you. If the charges cannot be dismissed in its entirety, the attorney would negotiate with the prosecution to reduce any felony charges to a misdemeanor charges. Misdemeanors have lighter penalties. An attorney can also try to reduce the charges to reckless driving.

A wet reckless is a plea bargained crime from a DUI. It cannot be originally charged. It can only be given through a plea bargain in which the prosecution agrees. It cannot be imposed by the court. A wet reckless indicates that there was alcohol involved when the driver was driving.

The penalties for a wet reckless can be jail time, fines, loss of driving privileges, and enrollment in alcohol educational programs. However, a wet reckless conviction has lighter penalties compared to a DUI. For example, the loss of your driving privileges is not mandatory, your attendance of a DUI class is for a shorter period of time, you will have a shorter probationary period, and the fines assessed will be less than the fine assessed for a DUI. In addition, you will not have to fill out a SR-22 form to show proof of insurance before you get your driver’s license back. It may also be beneficial to some professions that require the reporting of DUI convictions.

It is a reduced charge with lighter penalties, but it is still considered as a functional equivalent to a DUI conviction. What this means is that if you get a subsequent DUI within 10 years, the wet reckless can be considered a prior conviction to increase your punishment as if you had plead guilty to a DUI. This means that if you have one wet reckless conviction, the next DUI conviction you get will be considered as your second DUI. A second DUI has increased penalties. Another downside to a wet reckless conviction is that your insurance company will also consider a “wet reckless” as a DUI for insurance purposes. The cost of auto insurance will most likely increase. See California Vehicle Code Section 23103.5.

A dry reckless refers to reckless driving without any alcohol involved. This is a misdemeanor reckless driving under California Vehicle Code Section 23103. In some DUI cases, your skilled DUI defense lawyer may be able to convince the prosecution to reduce the charge to a dry reckless. With a conviction for a dry reckless, you face the possibility of jail time, fines and probation. However, the beneficial element of this charge is that it is not “priorable.” If this charge is given, it will not be treated as a DUI if you are arrested in the future for a subsequent DUI.

When can the prosecution use PAS test results as evidence?

The results of a preliminary alcohol screening (PAS) test are admissible upon a showing of either compliance with Title 17 or the foundational elements of (1) properly functioning equipment, (2) a properly administered test, and (3) a qualified operator.

If you or a loved one is facing a charge for a DUI, it is important that you speak with the experienced DUI defense attorneys at Wallin & Klarich. With our 30 years of experience, we will help guide you through the long court process as we defend your rights and fight to get you the best possible result in your case.