It is not entirely uncommon for a person who has been convicted of a DUI to continue to engage in the same behavior, and therefore end up with multiple convictions. In California, there is a framework for how to deal with multiple misdemeanor DUI convictions by the same defendant. As discussed herein, a prior DUI conviction also includes what is commonly known as a "wet reckless" plea bargain. As with any misdemeanor DUI, it is a violation of Vehicle Code section 23152 (subsections (a) and (b)).
When a person is convicted of a second DUI within ten years, the penalties increase significantly over the first conviction, though it is still treated as a misdemeanor. A third DUI within that same ten year time-frame carries even harsher penalties, but again is generally treated as a misdemeanor. A fourth DUI within ten years is generally, but not always, treated as a felony.
Whether to prosecute a fourth or further DUI as a misdemeanor or a felony is a decision left to the discretion of the prosecutor, so it is possible for a person to have four or more misdemeanor DUI convictions within ten years. However, as you will see below, any DUI conviction, let alone a subsequent conviction; imposes significant and long-lasting penalties on the defendant. Because of that, it is fairly unlikely that anyone facing a fourth DUI conviction within ten years will not be facing felony charges.
What is a "Wet Reckless" Plea Bargain:
If a person is charged with a DUI, it is sometimes possible to enter into a plea bargain to have the DUI charge reduced to what is commonly known as a "wet reckless." This refers to Vehicle Code section 23103.5 where a person can agree to plead no contest or guilty to a violation of section 23103 ("Reckless Driving") instead of facing a conviction for DUI.
There are several benefits to entering into a "wet reckless" plea bargain, as opposed to a DUI conviction. The defendant does not necessarily face a suspension of their driver's license, they pay a lower fine, are subject to a shorter probation period, a shorter stint in DUI education, and their criminal record will not show a DUI conviction.
However, a wet reckless plea bargain is considered a "priorable" offense when it comes to DUI prosecutions. This means that when a person is convicted of a DUI, after already pleading to a wet reckless; that prior conviction will count as a prior DUI conviction for determining the penalties they face on the current DUI conviction.
What Counts as a Subsequent DUI Conviction:
In order for a defendant to face penalties for a subsequent DUI conviction, they must have had a prior offense in the last ten years. As mentioned above, a prior "wet reckless" conviction will count for purposes of determining whether the current conviction is a subsequent DUI conviction. Of course, an actual prior conviction for DUI conviction will count as well.
It is important to note, however, that only misdemeanor DUI convictions will typically count as priors on a subsequent misdemeanor DUI conviction. If a person has a prior felony DUI conviction, then any subsequent DUI conviction will typically be treated as a felony; and be subject to must harsher penalties than those imposed for any misdemeanor, even a third or further offense. Similarly, if the DUI results in injury to or the death of another person, it will likely be treated as a felony. Finally, if the defendant already has three or more misdemeanor DUI convictions in the last ten years, any subsequent DUI conviction will likely be treated as a felony.
How Does a Prosecutor Prove A DUI With Priors:
To prove a defendant guilty of DUI with prior DUI convictions, the prosecution must prove the same elements as a first offense misdemeanor DUI. In addition to that, the prosecutor must prove that within the last ten years, the defendant was convicted of a prior DUI, or was charged with DUI and entered into a plea bargain for a "wet reckless."
The elements that must be proven for any DUI conviction are:
- The defendant was engaged in driving a motor vehicle; and
- The defendant, at the time they were driving, was acting under the influence of alcohol or drugs; or
- The defendant's blood/alcohol level was 0.08% or more.
Penalties For Multiple DUI Convictions:
When a person is convicted of a DUI, there are a number of different penalties that they will face beside the typical criminal penalties of jail time and a fine.
For any DUI conviction, the defendant will (1) be required not to drive with any measurable amount of alcohol in their blood; (2) not be able to refuse to submit to a Blood Alcohol Content ("BAC") test, such as a breathalyzer; and (3) not drive without a valid and current car insurance policy.
For purposes of comparison, the penalties for a first DUI offense are described below as well.
- For a first DUI conviction:
- Summary probation, ranging from three to five years; and
- Jail time, ranging from ninety-six hours (four days) to six months; and/or
- A maximum fine of $2,000.00; and
- Suspension of their driver's license for six months; and
- Complete either a three month or nine month drunk driver program, depending on their blood/alcohol level at the time of the offense.
- For a second DUI conviction:
- Summary probation, ranging from four to five years; and
- Jail time, ranging from ninety-six hours (four days) to one day short of one year; and/or
- A maximum fine of $2,000.00, in addition to penalty assessments; and
- Suspension of their driver's license for two years; and
- Complete a drunk driver program, that lasts anywhere from eighteen to thirty months.
- For a third DUI conviction:
- Five years summary probation; and
- Jail time, ranging from one hundred twenty days to one day short of one year; and/or
- A maximum fine of $2,000.00 in addition to penalty assessments; and
- Suspension of their driver's license for three years; and
- Complete a drunk driver program that lasts at least thirty months; and
- Pursuant to Vehicle Code section 14601.3, be designated a "habitual traffic offender" for three years; and
- Installation of an Ignition Interlock Device ("IID.") An IID is basically a breathalyzer that is installed in your vehicle. It prevents your car from starting unless you blow into it, and it does not detect any alcohol on your breath.
While a fourth (or fifth, sixth, etc.) DUI conviction within ten years will typically be treated as a felony, it is technically what is known as a wobbler; meaning it can be charged as either a misdemeanor or a felony. If the prosecutor decides to treat a fourth or further DUI conviction as a misdemeanor; it will carry the same penalties as a third DUI conviction, except that the defendant's driver's license will be suspended for at least four years.
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