“Wet Reckless” as a Plea Bargain in DUI Cases

Wet reckless (often called “wet and reckless“) is the informal name given to a crime that a person charged with DUI pleads guilty or no contest to as part of a plea agreement. The prosecutor agrees to drop the more serious DUI charge in exchange for the defendant pleading to the less serious wet reckless charge.

“Wet reckless” is simply a nickname for a charge of reckless driving, Vehicle Code 23103, that:

1. Results from a Tahl waiver and plea bargain to charges of driving under the influence, and
2. Includes a note on the defendant’s criminal record that the offense involved alcohol and/or drug use.¹

This last factor is what makes a “wet” conviction different from a so-called “dry reckless” – which is another plea bargain to DUI charges. A dry reckless does NOT include a note referencing the involvement of alcohol and/or drugs.

This distinction is important because “wet reckless” is a “priorable offense” (as discussed below).² A dry reckless is not.

Advantages of a “wet reckless”

Advantages of a “wet reckless” over a DUI include:

• No mandatory court-ordered driver’s license suspension (the DMV can still suspend the driver’s license, though even then the defendant may still be able to drive with the installation of an ignition interlock device (IID)),
• A shorter potential jail sentence (between 5 and 90 days),
• Lower fines (between $145 and $1,000),
• A shorter period of probation (typically one or two years),
• Shorter DUI school (typically six weeks),
• No mandatory installation of a California ignition interlock device (“IID”), and
• No DUI on the driver’s criminal record. ³

Consequences of a “wet” plea bargain

One of the consequences of a “wet reckless” conviction is that it counts as a “priorable” offense. ⁴

This means that if the defendant is convicted of a DUI within the next 10 years (California’s DUI “lookback” period), he/she will be considered a repeat offender.

A repeat offender faces increased penalties for a second DUI or a third-time DUI.⁵

Other consequences of a “wet reckless” include:

• Likelihood of being treated as a DUI by the defendant’s car insurance company. This can result in higher premiums or even cancellation of the driver’s policy.
• The DUI arrest itself triggers an “administrative per se” (APS) hearing at the DMV. So even if the original criminal charge is knocked down to a wet reckless, the defendant will still need to request — and win – an APS hearing.
• Addition of two points on the driver’s California DMV driving record (or 3.5 points if the violation occurred in a commercial vehicle). ⁶

To help you better understand “wet reckless” plea bargains in DUI cases, our California DUI lawyers discuss the following:

• 1. What’s the difference between a wet reckless and a DUI?
  • 1.1. What is the difference between a “wet reckless” and a “dry reckless”?
  • 1.2. How does a defendant get a wet reckless plea deal?
• 2. Should I accept a “wet reckless” plea deal?
  • 2.1. The advantages of a “wet reckless” plea bargain
• 3. What is the downside of a reckless driving conviction?
• 4. When are plea bargains typically offered in DUI cases?

1. What’s the difference between a wet reckless and a DUI?

“Wet reckless” is a charge reduction authorized by Vehicle Code 23103.5 VC. It is commonly offered as a plea bargain to charges of VC 23152(a), driving under the influence, or VC 23152(b), driving with a blood alcohol content (BAC) of 0.08% or higher.

Note that “wet reckless” is not a charge for which someone can be arrested. It’s simply a nickname for a reckless driving conviction that:

1. Results from a DUI plea bargain, and
2. Includes a notation indicating there was alcohol and/or drug use.

1.1. What is the difference between a “wet reckless” and a “dry reckless”?

The main difference between a “wet” and a “dry” reckless is whether the criminal record will note that alcohol or drugs were involved in the offense. A “wet” conviction contains such a note. A “dry” one does not.

In fact, “dry reckless” is just another name for a regular VC 23103 reckless driving conviction. It is used when the conviction is the result of a DUI plea bargain. It does not necessarily indicate that the defendant’s driving was reckless.

The reason the distinction between a wet and a dry reckless is important is that “wet reckless” is a “priorable” offense.⁷

This means that if the defendant is convicted within the next ten years of another driving offense involving alcohol and/or drugs, he or she will face increased penalties as a repeat offender.

1.2. How does a defendant get a wet reckless plea deal?

Both the prosecutor and the defendant must agree to a wet reckless plea bargain. The court must also approve the plea deal. ⁸

Once everyone has agreed, the defendant will be allowed to plead guilty or “nolo contendere” (no contest) to reckless driving. The court will then dismiss the DUI charges and notify the DMV of the conviction. ⁹

This procedure is set forth in Vehicle Code 23103.5, which provides, in part:

“(a) If 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, 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. The statement shall set forth the facts that show whether or not there was a consumption of an alcoholic beverage or the ingestion or administration of a drug by the defendant in connection with the offense.

2. Should I accept a “wet reckless” plea deal?

Whether “wet reckless” is a good plea bargain depends on the circumstances of the case. In particular, it may depend on whether the defendant already has a DUI or wet reckless on his or her record.

California has a ten-year “look back” period for alcohol and/or drug-related driving offenses.

Each time someone gets convicted of a “wet” driving offense during the most recent ten-year period, the potential penalties for the new offense increase. This is what we mean when we say that a DUI or wet reckless is a “priorable” offense.

2.1. The advantages of a “wet reckless” plea bargain

Advantages of a “wet reckless” charge reduction from DUI can include:

• A shorter jail sentence,
• Less mandatory jail time for someone with prior DUIs,
• Shorter probation period,
• Lower fines,
• No mandatory court-ordered license suspension,
• Shorter DUI school,
• Potentially less impact on a professional license, and
• No mandatory installation of an ignition interlock device (though if the DMV suspends the person’s license separate from the criminal case, an IID may be necessary for the defendant to continue driving).¹⁰

Let’s take a closer look at each of these.

Shorter county jail sentence

The maximum county jail sentence for a wet reckless is ninety (90) days.¹¹

By contrast, a DUI carries a maximum sentence of:

• Six (6)-months for a first offense, or
• One (1) year for a second or third offense.¹²

This difference can be especially important if the defendant is sentenced to probation instead of jail time. Someone who violates probation after a wet reckless or a DUI conviction will face a DUI probation violation hearing. ¹³

If the defendant is found to be in violation, the judge can revoke probation and send the defendant to jail for the full maximum sentence.¹⁴

Less mandatory jail time with prior DUIs

A wet reckless generally involves less jail time than a DUI. The difference is especially notable when the defendant has one or more “priorable” offenses on his or her record. Wet reckless counts as a DUI for purposes of determining prior offenses.

Mandatory minimum jail times for repeat DUI offenders are:

• Second-time DUI: at least ninety (90) days in jail,¹⁵ or
• Third time DUI: at least one hundred twenty (120) days in jail.¹⁶

These are MINIMUM jail sentences based on California state DUI laws. Many county statutes impose even more jail time for repeat offenders.

But the minimum jail time for a wet reckless conviction is just five (5) days. This five (5)-day minimum applies regardless of how many DUI and/or wet reckless priors the defendant has.¹⁷

Pasadena DUI defense attorney John Murray¹⁸ explains:

“Repeat offenders may be able to avoid several months in jail with a wet reckless plea bargain. This is one significant advantage of a reckless driving plea agreement when a prior offender is facing new DUI charges.”

Shorter probation period

A California DUI typically carries a three- to five-year probationary period.¹⁹ But probation for a California wet reckless charge usually lasts just one or two years.

This shorter probation time is especially desirable because:

• Expunging a DUI or wet reckless conviction is only possible after the defendant has completed probation; and
• Until the conviction is expunged, it will show up on employer background checks.

Note that under California’s “ban the box” law, employers may not ask about criminal convictions on job applications or during initial interviews. They may only ask about such convictions once a conditional job offer has been made.²⁰

But convictions will still show if the employer runs a background check.

As Pasadena drunk driving lawyer John Murray says:

“By law an employer cannot automatically deny someone employment because of a conviction. But until the conviction is expunged, employers can still see an applicant’s criminal record. A wet reckless leads to a faster possible expungement. And, in the meantime, the charge carries less of a stigma than a DUI.”

Lower fines

A wet reckless generally results in lower total fines than a California DUI.

The theoretical maximum fine for either a California wet reckless or a DUI is one thousand dollars ($1,000).²¹

But once court-imposed “penalty assessments” get added in the fines for a DUI can end up being as much as $3,000.

So, as a practical matter, fines for a wet reckless end up being approximately half of what they would be for a DUI.

No mandatory court-ordered license suspension

Unlike a DUI, a “wet reckless” does not trigger a mandatory court-ordered driver’s license suspension. This contrasts with a DUI conviction which requires suspension of the defendant’s driver’s license for at least:

• 6 months for a first DUI offense,
• 2 years for a second DUI offense, or
• 3 years for a third DUI offense.²²

Certain types of DUI convictions also trigger a one-year “hard” suspension. This means the driver cannot obtain a restricted license to drive to work and/or DUI school.

Charges that trigger a hard suspension are:

• Chemical test refusals,²³ or
• Underage DUI. ²⁴

But a wet reckless conviction does NOT trigger an automatic driver’s license suspension as a criminal penalty. Though, the court may order an IID for usually three to six months.

DMV penalties are still possible

Someone arrested for a DUI faces an administrative suspension of his or her license by the DMV – even if the charge is ultimately reduced. To keep from losing driving privileges the defendant must request – and win – a DMV “administrative per se” (APS) hearing.

This hearing is not automatic. The defendant must request it within 10 days of his or her arrest.

Even if the DMV suspends the person’s license, the DMV may allow the person to drive with an IID (usually for four months for a first offense, and one year for a second).

Note also that a reckless driving conviction will add at least two points to the driver’s California DMV driving record. ²⁵ Once a driver accumulates a certain number of points, he/she will be designated a “negligent operator” and his/her license will be suspended.²⁶

Shorter DUI school

Penalties for a first-time “wet reckless” conviction include a six-week alcohol education program.²⁷

This is, however, still shorter than the minimum three-month program required after a California DUI conviction.²⁸

Note that the alcohol education program for wet reckless increases to nine months if the defendant has a prior “wet” or DUI conviction within the last ten years.²⁹

But this is still far less than the 18- or 30-month DUI school that is required following a second DUI conviction within any 10-year period.³⁰

Potentially less impact on a professional license

A wet reckless often has less impact on a professional license in California than a DUI does. A DUI can trigger a California professional license hearing if it is “substantially related” to the licensee’s job. ³¹

This can occur when the defendant holds or is seeking a healthcare license — such as those required of doctors, nurses, pharmacists and veterinarians.

While losing a license is not a certainty after a DUI, it does usually trigger an investigation. The licensing board may take action if it does not like the licensee’s explanation of the facts leading to the conviction.

No automatic disqualification based on a “wet” conviction

But a wet reckless is less likely to trigger these consequences. The conviction will still be reported to the DMV and any licensing board (and must be disclosed by the licensee). But the mere fact that a prosecutor was willing to reduce the charges may help prevent disciplinary action.

Note that while an expunged DUI does not have to be disclosed to most employers, this does not apply to state licenses.

Professionals facing DUI charges are strongly advised to consult with an experienced California DUI lawyer before interacting with their licensing board or accepting any DUI plea bargain.

No mandatory suspension of commercial driver’s license for a wet reckless

A DUI conviction will result in the mandatory suspension of a commercial driver’s license.³²

But a wet reckless conviction will not. It will only trigger a license suspension if the points added to the driver’s DMV record put the driver over the negligent operator limit.

A reckless driving conviction adds two points if the driver was in a regular vehicle and had a standard Class C license. As set forth in Vehicle Code 12810.5a VC, a Class C driver’s license will be suspended if the driver accumulates:

• 4 or more points in 12 months,
• 6 or more points in 24 months, or
• 8 or more points in 36 months.

 No mandatory installation of an ignition interlock device

California requires mandatory installation of an ignition interlock device (“IID”) after repeat DUI convictions. But with a “wet” reckless, installation of such a device is at the court’s discretion.³³

3. What is the downside of a reckless driving conviction?

Unfortunately, there are a few areas in which a wet reckless is treated the same as a DUI. These include:

• Counts as a “prior” in a subsequent DUI case,³⁴
• Driver’s license can still be suspended by the California DMV,
• Adds two “negligent operator” points to the driver’s DMV record,
• Will likely be treated as a DUI by car insurers, and
• Can be discovered (and eventually asked about) by potential employers.

Let’s take a closer look at a couple of these issues we have not yet discussed in detail.

A “wet reckless” counts as a DUI prior

“Wet reckless” is a “priorable offense” in California. This means that if the defendant is convicted of a DUI within ten years of the “wet” conviction, it will count as a prior DUI offense. The defendant will then face increased penalties as a repeat offender.³⁵

Driver’s license can still be suspended by the California DMV

A wet reckless conviction does not trigger a mandatory court-ordered license suspension as a criminal penalty. But the DMV will administratively suspend a driver’s license after an arrest for a DUI.³⁶

To avoid this, the driver must request a DMV hearing within 10 days of his or her arrest. He or she must then win the DMV hearing.

The DMV hearing will usually occur before any settlement in a DUI criminal case. But it may be possible to get a continuance (delay) from the DMV. This will give the defendant (or more likely the defendant’s lawyer) time to negotiate a plea bargain with the prosecutor.

(If the DMV suspends the person’s license, installation of an IID may be necessary for the defendant to continue driving legally.)

Although the DMV is not bound by the plea bargain, a wet reckless may help convince the DMV hearing officer to be lenient.

Note that this will not help a defendant who was under the age of 21 or who refused to take a DUI breath test or DUI blood test.³⁷

4. When are plea bargains typically offered in DUI cases?

A prosecutor is most likely to reduce a DUI to a wet reckless when:

• The defendant’s BAC was under or was close to 0.08%,
• The defendant does not have a significant history of drug- and/or alcohol-related offenses, and/or
• There are weaknesses in the prosecution’s case.

Example: The Riverside County District Attorney charges Mary with a DUI under Vehicle Code 23152(b) after she is arrested for driving with a 0.09% BAC.

Mary’s DUI attorney is able to negotiate a charge reduction down to wet reckless. She can do this because:

1. Mary has no prior DUIs or other criminal history,
2. Mary was polite and cooperative with the California Highway Patrol officer during her DUI investigation, and
3. Mary has an otherwise “clean” driving record.

Factors that affect the likelihood of a plea offer

Political pressure may prevent the prosecutor from offering a wet reckless deal to a repeat offender. But weaknesses in the prosecutor’s case can often override that pressure.

Such weaknesses can include:

• Procedural flaws in the DUI arrest and/or investigation, and/or
• Unique mitigating circumstances.

Example: The Orange County District Attorney charges Tony with his second DUI after his BAC on a California DUI breath test registers .08%.

But Tony’s DUI defense attorney discovers that the breath testing instrument was not calibrated according to legally mandated maintenance schedule. Because of this and the fact that Tony’s had a borderline BAC, the prosecutor is happy to accept a wet reckless plea deal.

This allows Tony to avoid jail time, an 18-month DUI school and a 2-year driver’s license suspension.

Example: Jenna has a new baby at home. She goes out to celebrate with her girlfriends for the first time since giving birth.

While Jenna is on her second glass of wine, her husband calls and says the baby seems sick. Jenna rushes home, not realizing she is a little tipsy. When she is pulled over for speeding, the officer smells alcohol.

Although Jenna’s BAC only registers .07%, the officer arrests her for impaired driving under VC 23152(a). But after Jenna’s Orange County DUI lawyer explains the circumstances, the prosecutor offers a plea deal.

Note that a wet reckless is by no means offered in every DUI case. It is a benefit that usually must be bargained for.

It might also not be the best deal that an experienced California DUI lawyer can negotiate. For instance, in the example immediately above, Jenna’s lawyer might have been able to negotiate a “dry reckless” or even an “exhibition of speed” as a DUI plea bargain.

Contact us for further assistance…

If you or a loved one has been charged with drunk or drugged driving, we invite you to contact us for a free consultation.

We also have offices in Las Vegas and Reno that may be able to help you reduce a Nevada DUI to reckless driving.

Additional driver resources:

DMV Driver Safety Offices: Locations and Hours

Legal references:

1. California Vehicle Code 23103.5(a): “If 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, 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. The statement shall set forth the facts that show whether or not there was a consumption of an alcoholic beverage or the ingestion or administration of a drug by the defendant in connection with the offense.”
2. Vehicle Code 23103.5 (c)
3. Vehicle Code 23103(c)California Senate Bill 1046 (2018).
4. Vehicle Code 23103.5 (c), endnote 2.
5. Vehicle Code sections 23536, Vehicle Code 23540 VC, and 23546 VC.
6. See California Department of Motor Vehicles, “Vehicle Code Violations used in Negligent Operator Counts.”
7. Vehicle Code 23103.5 (c), endnote 2.
8. Same. See also Vehicle Code 23103.5: “…(b) The court shall advise the defendant, prior to the acceptance of the plea offered pursuant to a factual statement pursuant to subdivision (a), of the consequences of a conviction of a violation of Section 23103 as set forth in subdivision (c).
9. Vehicle Code 23103.5 (d)
10. See endnote 3.
11. Vehicle Code 23103(c), endnote 3.
12. Vehicle Code sections 23536, 23540, and 23546 VC.
13. Penal Code 1203.2 PC.
14. Penal Code 1203.1 PC.
15. Vehicle Code 23540 VC.
16. Vehicle Code 23546 VC.
17. Vehicle Code 23103.5 (c), endnote 2.
18. Pasadena DUI defense attorney John Murray is a leading expert in California DUI defense strategy, including plea bargain and charge reduction options like wet reckless and dry reckless. He has extensive experience in the court systems of Los Angeles, Orange, and Ventura Counties and in California DMV hearings.
19. See Vehicle Code 23600 VC.
20. California Fair Employment and Housing Act section 12952.
21. Vehicle Code 23103 VC [reckless]; Vehicle Code 23536 VC [first-time DUI].
22. Vehicle Code 13352 VC.
23. Vehicle Code 23612 VC.
24. Vehicle Code 13353 VC.
25. See endnote 6.
26. Same.
27. Vehicle Code 23103.5(e)
28. Vehicle Code 23538(b).
29. Vehicle Code 23103.5(f)(1), endnote 27.
30. Vehicle Code 23542 VC.
31. See Government Code 11500 and subsequent sections.
32. Vehicle Code 15300 VC.
33. Vehicle Code 23103.5(g), endnote 3.
34. Vehicle Code 23103.5 (c), endnote 2.
35. See e.g., Vehicle Code 23540 VC.
36. Vehicle Code 13352 VC.
37. Vehicle Code 23612 VC; Vehicle Code 13353 VC.