The DUI Speed Enhancement
Section 23582 of the California Vehicle Code says that anyone who drives 20 miles per hour or more over the speed limit on surface streets, or 30 miles per hour or more on the freeway in a reckless manner while driving under the influence (DUI) must serve a mandatory minimum 60 days in jail, in addition to the punishment for DUI. This section is known by prosecutors, judges, and DUI lawyers as the “DUI speed enhancement.” This enhancement can turn what would normally be a first-offense no-jail DUI into a sixty day stay in the Orange County jail.
In my experience, any time a DUI arrest is made and the driver’s speed meets the requirements, the District Attorney alleges this DUI speed enhancement in the Complaint. However, section 23582 specifically requires “reckless driving” in addition to excessive speed. When I raise this point with the deputy DA they almost always say something along the lines of “well counselor, your client was DUI and driving that fast while drunk IS reckless driving.” But this simply is not true.
Reckless Driving Required
Reckless driving is defined in Vehicle Code Section 23103, which requires that the driver intentionally drove with wanton disregard for the safety of others. Whether DUI or speed can be used to show “recklessness” was addressed long ago in the case of People 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, the court said:
“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.”
Thus, the mere fact that a driver is DUI does NOT meet the recklessness requirement of the DUI speed enhancement.
The last time I handled a DUI speed enhancement I gave the deputy DA a copy of this case, rebutting their argument that DUI itself was reckless. The DA then changed his basis of reckless driving. He argued that my client’s hitting of the curb while being pulled over constituted the required recklessness.
While accidentally bumping the curb may seem “reckless” in the way we commonly use the word, it does not meet the legal definition. Reckless conduct is different from negligence; reckless conduct is intentional while negligent acts, such as bumping the curb, are unintentional. Again, this issue is well settled in case law. In People v. Allison (1951) 101 Cal.App.2d Supp. 932, 935, endnote 9, the court said
“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].)”)
Wanton Disregard for Safety
Moreover, even if my client did intend to hit the curb, reckless driving requires a wanton disregard for safety. This means a driver must have a conscious awareness that their conduct is likely to injure another person but they intentionally ignore that risk. This, again, was established by case law a long time ago. In People v. Schumacher (1961) 194 Cal.App.2d 335, 340, the court held that with respect to reckless driving and Vehicle Code 23582 VC, California’s DUI speeding enhancement,
“[t]he 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.”
Thus, even if my client intended to hit the curb, (which of course is absurd), that conduct is not likely to harm another and would NOT constitute the wanton conduct required for reckless driving.
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