Vehicle Code 23582 VC is a California DUI “sentencing enhancement” law. It adds a minimum of 60 days in jail to the sentence for a DUI when all three of the following apply:
- 1. The driver was convicted of:
- 2. During the offense, the driver drove over the maximum posted speed limit by:
- 30 miles per hour on a freeway, or
- 20 miles per hour on any other street or highway, AND
- 3. The driver drove in a reckless manner.4
A driver whose sentence is enhanced under VC 23582 must also attend a drug and/or alcohol education program (also known as California DUI school.)
To help you better understand Vehicle Code 23852, our California DUI defense lawyers discuss, below:
- 1. How does the prosecutor prove a VC 23582 DUI speed and reckless driving enhancement?
- 2. The punishment for speeding and driving recklessly while under the influence
- 3. How to fight a speeding/reckless DUI enhancement under Vehicle Code 23582 VC
1. How does the prosecutor prove a VC 23582 DUI speed and reckless driving enhancement?
A DUI sentencing enhancement under Vehicle Code 23852 requires the prosecutor to allege and prove all three of the following:
- The driver drove under the influence,
- The driver drove at excess speed during the DUI offense, and
- The driver drove recklessly while DUI.5
Let’s take a closer look at the second two requirements.
1.1. The driver drove at excessive speed
A DUI sentencing enhancement under Vehicle Code 23582 requires the prosecutor to prove the driver drove at excess speed. For purposes of VC 23582, “excess speed” is defined as:
- 30 mph or more over “the maximum, prima facie, or posted speed limit” on a freeway, or
- 20 mph or more over “the maximum, prima facie, or posted speed limit” on a public street.6
“Maximum,” “prima facie,” and “posted” speed limits
“Posted” speed limits are those set forth on signs that line freeways and streets. They indicate the maximum speed for a specific stretch of roadway.
“Maximum” and “prima facie” speed limits are those which apply when there is no posted speed limit sign. The main maximum and prima facie speed limits in California are:
- 55 mph on a two-lane highway,7
- 65mph on any other highway, 8 and
- 25 mph on a public street.9
Other maximum speed limits apply to specific types of drivers, vehicles or locations (such as buses and cars towing other vehicles). 10
California also has a “basic speeding law,” Vehicle Code 22350 VC. This section makes it illegal to drive faster than is reasonably safe given weather, road and traffic conditions. 11
But note that speeding, alone, does not trigger a DUI sentencing enhancement under VC 23582. The defendant must also have committed reckless driving.
1.2. The driver drove recklessly
“Reckless driving” means driving with a “willful or wanton disregard for the safety of persons or property”.12 “Willful or wanton disregard” means that the driver has a conscious awareness that his/her conduct is likely to injure another person, but the driver intentionally ignores that risk.13
This is a very high standard. It requires the likelihood that the conduct in question (driving under the influence) will injure someone. In other words, injury must be “probable,” not just “possible.”14
California courts have held that driving under the influence and speeding, by themselves, do not constitute willful or wanton disregard for safety. 15
And since “reckless” conduct requires an intentional act (ignoring the likelihood of injury) a driver can’t be convicted of reckless driving based on negligence. This is true even if the driver’s negligence rises to the level of gross negligence or criminal negligence.16
Examples of reckless driving
The following are examples of things a driver might do that could count as reckless driving for purposes of Vehicle Code 23582 VC:
- Play “chicken” with an oncoming car or person (that is, drive towards another car or person to see who yields first),17
- Swerve or “jerk” the steering wheel to pretend that he/she is going to crash into another car or person,18 or
- Play “bumper tag” (that is, pass other cars and then slam on the brakes to force a following driver to brake to avoid a collision).19
2. The punishment for speeding and driving recklessly while under the influence
If the elements of Vehicle Code 23582 are proved, a DUI offender faces an additional 60 days in jail for speeding and driving recklessly while under the influence.20
And if the court grants probation or suspends the execution of sentence, the defendant must still serve 60 days in the county jail, in addition to any other sentence imposed by the court.21
Also, if it is the defendant’s first Vehicle Code 23582 conviction, he/she will be ordered to complete an alcohol and/or drug education and counseling program.22
These penalties are mandatory and may not be waived except in the unusual case where the interests of justice would be served.23
3. How to fight a speeding/reckless DUI enhancement under Vehicle Code 23582 VC
To defend against a VC 23582 DUI enhancement, a defendant will typically take the position that one or more of the necessary elements are missing. Specifically, the defendant will contend that:
- He/she was not intoxicated,
- He/she was not driving 20 to 30 MPH above the speed limit, and/or
- He/she was not driving recklessly.
The defense does not have to prove these things. Rather, the burden is on the prosecutor to prove that all three elements ARE present.
But an experienced drunk driving defense lawyer will usually try to raise a “reasonable doubt” as to one or more of these three factors.
As Los Angeles DUI defense lawyer John Murray24 explains:
“Overzealous prosecutors love to allege the DUI speeding enhancement. And officers will sometimes claim the driver was going 95 just to trigger the enhancement—even when there was no radar gun or solid evidence to prove it.”
How a DUI plea bargain can help
In difficult cases, an experienced California DUI lawyer may still be able to negotiate a plea bargain to the DUI charge. The Vehicle Code 23582 speeding/reckless driving enhancement does not apply to reduced charges such as:
- “Wet reckless,” Vehicle Code 23103.5,
- “Dry reckless,” Vehicle Code 23103, or
- “Exhibition of speed,” Vehicle Code 23109(c).
Example: An LAPD officer catches Kelly running multiple stop signs in a residential neighborhood at almost 50 mph. A DUI breath test shows her blood alcohol concentration (BAC) to be just at California’s legal limit of .08%. Kelly is arrested and charged with DUI under both VC 23152(a) and (b). The prosecutor also charges a speed/reckless driving enhancement under VC 23582.
But Kelly’s Los Angeles DUI lawyer knows that the borderline DUI charge is weak. Since it’s is Kelly’s first arrest, the lawyer convinces the prosecutor to drop the DUI charge to a “wet reckless.” Since the speed enhancement only applies to a DUI conviction, it gets dropped as well. Kelly pays a fine and gets put on probation, but she stays out of jail.
Charged with DUI in California? Call us for help…
If you were charged with a California DUI—with or without a speeding enhancement—we invite you to contact us for a free consultation to discuss your case.
Call us or fill out the form on this page to speak with an experienced California DUI lawyer in your area.
We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
We also have offices in Las Vegas and Reno that represent people charged with violating Nevada DUI laws.
- California Vehicle Code 23152(a): “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 and drug, to drive a vehicle.”
- Vehicle Code 23152(b): “It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”
- Vehicle Code 23153: “(a) It is unlawful for any person, while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. (b) It is unlawful for any person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.”
- Vehicle Code 23582(a): “Any person who drives a vehicle 30 or more miles per hour over the maximum, prima facie, or posted speed limit on a freeway, or 20 or more miles per hour over the maximum, prima facie, or posted speed limit on any other street or highway, and in a manner prohibited by Section 23103 during the commission of a violation of Section 23152 or 23153 shall, in addition to the punishment prescribed for that person upon conviction of a violation of Section 23152 or 23153, be punished by an additional and consecutive term of 60 days in the county jail.”
- Vehicle Code 22349(b).
- Vehicle Code 22349(a).
- Vehicle Code 22352 (b).
For example, under Vehicle Code 22406 VC, a maximum speed of 55 mph applies on highways to:
- School buses,
- Trucks with three or more axles,
- Cars that are towing another vehicle,
- Vehicles that carry explosives, and
- Farm labor vehicles transporting people.
- Vehicle Code 22350: “No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.”
- See Vehicle Code 23103(a): “A person who drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.”
- People v. Schumacher (1961) 194 Cal.App.2d 335, 340: “The term ‘wantonness’ is thus defined: ‘Wantonness includes the elements of consciousness of one’s conduct, intent to do or omit the act in question, realization of the probable injury to another, and reckless disregard of consequences.’ [Citation.] … The word ‘willful’ in this connection means ‘intentional’ [citations]. The intention here referred to relates to the disregard of safety, etc., not merely to the act done in disregard thereof.” (People v. Nowell, 45 Cal.App.2d Supp. 811, 815 [ 114 P.2d 81].)”See also California Jury Instructions – Criminal — CALJIC 16.840 — Reckless driving: “Willful or wanton disregard” means an intentional or conscious disregard for the safety of persons or property.”See also Judicial Council of California Criminal Jury Instruction (CALCRIM) 2200: “A person acts with wanton disregard for safety when (1) he or she is aware that his or her actions present a substantial and unjustifiable risk of harm, and (2) he or she intentionally ignores that risk. The person does not, however, have to intend to cause damage.”
- People v. Allison (1951) 101 Cal.App.2d Supp. 932, 936: “[T]here is no evidence that he willfully and wantonly disregarded the safety of the complaining witness or that he acted with conscious and reckless disregard for the safety of the complaining witness or his children, or that his conduct indicates a wanton and reckless disregard of probable (as distinguished from possible) injury to the complaining witness.”
- People v. Clenney (1958) 165 Cal.App.2d 241, 248: “We hold that the crimes of driving an automobile while under the influence of intoxicating liquor and of reckless driving are separate, distinct offenses, established by different evidence. To drive an automobile while under the influence of intoxicating liquor (as defined by the California courts) is not, per se, a willful and wanton disregard of the safety of persons or property.”See also CALCRIM 2200: “[If you conclude that the defendant drove faster than the legal speed limit, that fact by itself does not establish that the defendant drove with wanton disregard for safety. You may consider the defendant’s speed, along with all the surrounding circumstances, in deciding whether the defendant drove with wanton disregard for safety.]”
- See People v. Allison at 935, endnote 14, above: “It is of course thoroughly settled that negligence, even though it be [criminal or] gross negligence, is not willful misconduct and does not amount to reckless driving. (Meek v. Fowler, 3 Cal.2d 420 [45 P.2d 194]; McCann v. Hoffman, 9 Cal.2d 279 [70 P.2d 909]; Porter v. Hofman, 12 Cal.2d 445 [85 P.2d 447].)”
- In re Bradley (1968) 258 Cal.App.2d 253, 258 — disapproved on other grounds: “Here the evidence discloses that the minor appellant willfully and knowingly drove his vehicle, at a comparatively high rate of speed, directly toward a 14-year-old child, in what the appellant described as a game of ‘chicken.’ The child froze with terror, was unable to move out of the direct path of the oncoming vehicle, and consequently was struck and seriously injured. Under these circumstances there was an abundance of evidence to support the trial court’s conclusion that the minor plaintiff intentionally drove his vehicle with knowledge that serious injury to the minor victim was probable, or that he intentionally acted with a wanton and reckless disregard of the possible result of his conduct.”
- See In re Alicia W. — Not Reported in Cal.Rptr.2d, 2002 WL 1357141.
- See same.
- Vehicle Code 23582(a), endnote 4.
- Vehicle Code 23582(b): “If the court grants probation or suspends the execution of sentence, it shall require as a condition of probation or suspension that the defendant serve 60 days in the county jail, in addition and consecutive to any other sentence prescribed by this chapter.”
- Vehicle Code 23582(c).
- The National Advocacy for DUI Defense has placed Los Angeles DUI defense lawyer John Murray on their list of the nation’s top DUI lawyers. Mr. Murray represents clients in courts and California DMV hearings throughout Los Angeles, Ventura, San Bernardino, Riverside and Orange Counties.