California Vehicle Code 23582 VC is what's known as a DUI "sentencing enhancement". It increases the punishment if (a) a person is convicted of DUI and (b) the enhancement is found to be true.
The additional penalty is a minimum 60-day jail term added to your DUI sentence and a requirement that you participate in a drug and/or alcohol education program (also known as California DUI school.)
To sustain the excessive speed enhancement, prosecutors must show that the person
- violated Vehicle Code 23152(a) driving under the influence,1Vehicle Code 23152(b) driving with a BAC .08 or more or Vehicle Code 23153 VC (DUI with injury),2
- drove 20 to 30 miles per hour over the speed limit, AND
- drove in a reckless manner.3
Bear in mind that the prosecutor must prove all three of these facts.
Let's take a closer look at the second two requirements.
Driving 20 to 30 miles per hour over the speed limit
California Vehicle Code 23582 VC penalizes a DUI driver who goes
- 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. 4
"Prima facie" speed limits are those which are the "norm", absent a posted speed limit sign. Typically, the prima facie speed limit is 65mph on a freeway and 25mph on a public street.5
A "maximum" speed limit is that which is reserved for specific types of drivers or vehicles. For example, school buses, trucks with three or more axles, and cars that are towing another vehicle are forbidden from driving more than 55mph on a freeway at any time.6
"Posted" speed limits are just that.posted on signs that line freeways and streets, and indicate the maximum speed for a specific stretch of roadway.
California also has a "basic speeding law" found in Vehicle Code 22350 VC. This section makes it illegal to drive faster than is reasonably safe given the weather, road and traffic conditions.
Speeding, alone, does not trigger the additional penalty
The additional penalty only applies to your DUI if you were driving at least 30 MPH over the freeway limit or 20 MPH over the street limit.
But it's also important to understand that excessive speed alone does not trigger this California DUI speeding enhancement. There must also be reckless driving.
What is reckless driving?
"Reckless driving" means driving with a "willful or wanton disregard for the safety of persons or property".7 "Willful or wanton disregard" means that you have a conscious awareness that your conduct is likely to injure another person but you intentionally ignore that risk.8
This is a very high standard. That your conduct is "likely" to injure someone isn't the same as saying that it is "possibly" going to injure someone. Willful and wanton conduct refers to conduct that is probably going to injure another person.9
California courts have held that neither driving under the influence nor speeding, by themselves, constitute willful or wanton disregard for safety in and of themselves.10 The "recklessness" component must involve something more.
And along these same lines, since "reckless" conduct is necessarily intentional, you can't be convicted of reckless driving based on a negligent act. This is the case even if your negligence rises to the level of gross or criminal negligence.11
Examples of reckless driving
Examples of reckless driving may include:
- playing "chicken" with an oncoming car or person (that is, driving towards another car or person to see who yields first),12
- swerving or "jerking" the steering wheel pretending that you are going to crash into another car or person,13 or
- playing "bumper tag" (that is, passing cars and then slamming on your brakes, forcing the driver behind you to brake to avoid a collision - essentially "cutting off" other drivers).14
Defending against a speeding enhancement under Vehicle Code 23582 VC
In a DUI case involving an excessive speed allegation, the defense attorney will typically contend that one, two or all three of the elements are missing. Either the client
- wasn't intoxicated,
- wasn't going 20 to 30 MPH above the speed limit, and/or
- wasn't driving recklessly.
If the defense can raise a "reasonable doubt" as to any of these three factors, the additional penalty for excessive speed cannot be imposed.
As Los Angeles DUI defense lawyer John Murray explains15, "Overzealous prosecutors love to allege the DUI speeding enhancement every chance they get. And many cops will claim the driver was going 95 just to trigger the enhancement, when there was no radar gun or solid evidence to prove it. They forget (or assume that the defense attorney won't recognize) that this enhancement is reserved for only the most egregious cases of excessive speed and reckless driving."
Moreover, it may be possible to plea bargain the DUI to a lesser charge such as "wet reckless" or VC 23103 "dry reckless". If so, the additional penalty for speeding doesn't apply.
Example: If, for example, your lawyer convinces the prosecutor to drop your DUI charge to a "wet reckless" under Vehicle Code 23103.516, then no DUI conviction occurs. Since the speed enhancement only applies to a DUI conviction, it gets dropped too.
Call us for help.
If you or loved one is charged with Vehicle Code 23582 VC speeding enhancement and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. 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.
Additionally, our Nevada DUI defense attorneys represent clients accused of violating Nevada's DUI laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.17
1California Vehicle Code 23152 -- Driving under the influence. ("(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. (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.")
2California Vehicle Code 23153 -- DUI with Injury. ("(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.")
3California Vehicle Code 23582 VC -- Driving under the influence; addition penalty for excessive speed and reckless driving during commission of offense; additional punishment. ("(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 [California Vehicle Code] Section 23103 [reckless driving] during the commission of a violation of Section 23152 or 23153 [driving under the influence] 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 [this is California's DUI speeding enhancement]. (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. (c) On a first conviction under this section, the court shall order the driver to participate in, and successfully complete, an alcohol or drug education and counseling program [otherwise known as DUI school], or both an alcohol and a drug education and counseling program. Except in unusual cases where the interests of justice would be served, a finding making this section applicable to a defendant shall not be stricken pursuant to Section 1385 of the Penal Code or any other provision of law. If the court decides not to impose the additional and consecutive term [under California's DUI speeding enhancement], it shall specify on the court record the reasons for that order. (d) The additional term provided in this section shall not be imposed unless the facts of driving in a manner prohibited by [California Vehicle Code] Section 23103 [reckless driving] and driving the 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, are charged in the accusatory pleading and admitted or found to be true by the trier of fact. A finding of driving in that manner shall be based on facts in addition to the fact that the defendant was driving while under the influence of alcohol, any drug, or both, or with a specified percentage of alcohol in the blood.")
4See Vehicle Code 23582 VC, California's DUI speeding enhancement, above.
5California Vehicle Code 22352 sets forth the prima facie speed limits as follows: The prima facie freeway speed is 65mph. The prima facie street speed is 25mph in business or residential areas, in a school zone, or when passing a senior living facility. It is 15mph when approaching a train crossing, approaching a "blind" intersection that is not monitored by a stop sign or traffic signal, or driving in an alley.
6California Vehicle Code 22406 -- Maximum speed limit for certain vehicles. ("No person may drive any of the following vehicles on a highway at a speed in excess of 55 miles per hour: (a) A motortruck or truck tractor having three or more axles or any motortruck or truck tractor drawing any other vehicle. (b) A passenger vehicle or bus drawing any other vehicle. (c) A schoolbus transporting any school pupil. (d) A farm labor vehicle when transporting passengers. (e) A vehicle transporting explosives. (f) A trailer bus, as defined in Section 636.")
7California Vehicle Code 23103 VC -- Reckless driving. ("(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. (b) A person who drives a vehicle in an offstreet parking facility, as defined in subdivision (c) of Section 12500, in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.")
8People v. Schumacher (1961) 194 Cal.App.2d 335, 340. ([With respect to reckless driving and Vehicle Code 23582 VC, California's DUI speeding enhancement] "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.")
9People v. Allison (1951) 101 Cal.App.2d Supp. 932, 936. (".there 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.")
10People v. Clenney (1958) 165 Cal.App.2d 241, 248. ([With respect to Vehicle Code 23582 VC, California's DUI speeding enhancement's reference to reckless driving] "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. ("[As applied to Vehicle Code 23582 VC, California's DUI speeding enhancement] [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.]")
11See People v. Allison at 935, endnote 9, 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].)")
It is important to note that negligence (whether ordinary or gross) can be the basis for certain vehicular offenses, including DUI with injury, vehicular manslaughter, Penal Code 192.5(b) vehicular manslaughter (Penal Code 192.5(b) punishes killing someone while DUI with ordinary negligence), and Penal Code 192.5(a) gross vehicular manslaughter while intoxicated (Penal Code 192.5(a) punishes killing someone while DUI with gross negligence).
12Bradley v. People (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".which supported the reckless driving charge.)
13In re Alicia W. -- Not Reported in Cal.Rptr.2d, 2002 WL 1357141. ("Here, the minor said that she was driving at the speed limit and that there was no more than a momentary lapse on her part, that is, two "jerks" of the wheel. But this conduct, near to eight members of the cross-country team running beside the road, who she admits seeing for at least 30 seconds, is plainly heedless of the consequences of swerving her car. Moreover, this characterization of her driving is at odds with the testimony of Ms. Grajek. Her testimony is telling. Ms. Grajek testified that after passing the eight runners she looked in her rearview mirror to see if the driver of the car behind her saw the girls. She described the minor's actions: "I saw her jerking the wheel.... She was laughing and going back and forth.... It was quick movements."") The court held this conduct was sufficient to sustain a reckless driving conviction.
14See same. ("While there was evidence presented that the minor's friends had been swapping cars and engaging in dangerous driving activities including bumper tag prior to the accident, had the trial court found that the minor was, herself, involved in this conduct and that the conduct was somehow connected to the accident, she would not have fared so well on the eight felony charges. (Cf. People v. Eagles (1982) 133 Cal.App.3d 330, 338-339, 183 Cal.Rptr. 784 [the court found that evidence of defendant's reckless driving during the afternoon before the accident was relevant to defendant's state of mind and his intent for the second degree murder charges].) Whether or not the trial court considered the evidence of the minor's friends' conduct prior to the accident is entirely immaterial. As already discussed, there was sufficient evidence to support the trial courts finding of reckless driving even without this evidence.")
15Los Angeles DUI defense lawyer John Murray represents clients in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.
16California Vehicle Code 23103, pursuant to California Vehicle Code 23103.5 - "Wet Reckless". ("(a) If the prosecution agrees to a plea of guilty or nolo contendere to a charge of a violation of [California Vehicle Code] Section 23103 [reckless driving] in satisfaction of, or as a substitute for, an original charge of a violation of [California Vehicle Code] Section 23152 [California's DUI law], 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." A conviction under this code does not subject an offender to Vehicle Code 23582 VC, California's DUI speeding enhancement.)
17Please feel free to contact our Nevada DUI criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada's DUI laws. Their Nevada law offices are located in Reno and Las Vegas.