Wet Reckless Reduction in California in San Jose, CA What 23103.5 Requires and Preserves

What the statute actually authorizes

Section 23103.5 applies where the prosecution agrees to a plea of guilty or nolo contendere to a charge of a violation of section 23103 in satisfaction of, or as a substitute for, an original charge of a violation of section 23152. In that circumstance the prosecution shall state for the record a factual basis for the satisfaction or substitution, including whether or not there had been consumption of an alcoholic beverage or ingestion or administration of a drug, or both, by the defendant in connection with the offense (Vehicle Code 23103.5). That statement is entered in the docket. The underlying offense is section 23103, which defines reckless driving as driving a vehicle upon a highway in willful or wanton disregard for the safety of persons or property, punishable by imprisonment in a county jail for not less than five days nor more than 90 days, or a fine of not less than $145 nor more than $1,000, or both (Vehicle Code 23103).

It counts as a prior

The most consequential sentence in section 23103.5 is the one that follows the plea. Where the statement on the record shows the consumption of an alcoholic beverage or the ingestion or administration of a drug, the resulting conviction of a violation of section 23103 shall be a prior conviction for the purposes of sections 23540, 23546, 23550, 23560, 23566 and 23622. In practical terms a wet reckless obtained today will make a section 23152 charge five years from now a second offense under section 23540, with the 90-day-to-one-year range and the two-year license suspension that section 13352(a)(3) attaches to that outcome (Vehicle Code 23540). Section 23103.5 also requires the court to advise the defendant, before accepting the plea, of the consequences of a conviction of a violation of section 23103 as they relate to those sections.

Program and interlock conditions attach to it

A wet reckless is not a conviction without conditions. Section 23103.5 provides that if the court grants probation, it shall require as a condition that the person participate in and successfully complete a licensed alcohol and drug education and counseling program, and that where the offense occurred within ten years of a separate qualifying violation resulting in a conviction, the person shall participate in a program of at least nine months or longer consisting of at least 60 hours of program activities. The section further provides that the court may require the person to install a functioning, certified ignition interlock device on any vehicle the person operates, for a period of not less than three months and up to the term described in section 23575.3 (Vehicle Code 23575.3).

The administrative suspension is untouched

This is the point most often misunderstood about a reduction. The Department of Motor Vehicles states, in answer to whether a reduction affects the suspension, that a reduction of a DUI charge to reckless driving in criminal court is separate and/or independent from the administrative proceeding, and it does not affect the driving privilege suspension (California DMV). The reason is statutory. Section 13353.2 keys the administrative per se suspension to what the officer's report and test results establish, and section 13353.2 describes the department's determination as a civil matter independent of the determination of guilt or innocence, with no collateral estoppel effect from the criminal disposition (Vehicle Code 13353.2). Section 13353.3 sets that period at four months where no qualifying prior appears within ten years and one year where one does (Vehicle Code 13353.3).

What the reduction does and does not change

Set against a section 23152 conviction, a section 23103 conviction under section 23103.5 changes several things. Section 23536 sets the first-offense DUI range at not less than 96 hours nor more than six months in county jail, with 48 hours of it continuous, and a fine of not less than $390 nor more than $1,000 (Vehicle Code 23536), while section 23103 carries a five to 90 day range and a $145 to $1,000 fine. Section 13352(a)(1) attaches a six-month suspension to a first section 23152 conviction, and section 13352 does not list a section 23103 conviction under 23103.5 in that schedule (Vehicle Code 13352). What does not change is the prior status, the program requirement, the point count, and the administrative suspension already running.

Where a reduction is negotiated in Santa Clara County

The plea and the statement of factual basis happen in the courtroom handling the case, which for a San Jose arrest is the Hall of Justice at 190 West Hedding Street (Santa Clara County Superior Court). The court describes the pretrial phase as the stage where the prosecution and defense exchange information through discovery, either side may file pretrial motions, the defendant may change plea, and the judge and lawyers may discuss how the case could be resolved without trial (Santa Clara County Superior Court). This page is general information about California law and is not legal advice. Whether a reduction is available or advisable in a particular case is a question for a licensed California attorney, and the attorney who advertises on this site can be reached at the number posted here.