A plea bargain in a DUI case is a negotiated alternative to taking a case to jury trial. It typically involves either:
- A sentence reduction, or
- A charge reduction.
To get a sentence reduction, you plead guilty or “no contest” to driving under the influence. In exchange, you receive a set of agreed-upon penalties. This saves you the uncertainty of waiting to see what sentence the judge will impose if you are found guilty at trial.
A charge reduction, on the other hand, involves you admitting guilt to a lesser charge. This reduced charge results from a negotiation between you and the prosecutor. Typically this charge will have lighter penalties and less stigma than a drunk driving conviction.
Advantages of a Plea Bargain
The main advantages of admitting guilt in exchange for a DUI sentence reduction are:
- Likelihood of a more lenient sentence, and
- Knowing in advance what the sentence will be.
Advantages of a charge reduction include:
- No mandatory driver’s license suspension (in most states), and
- In some cases, no “priorability.” This means the new charge will not count as a prior offense if later on you are convicted of driving under the influence.1
Common Charge Reductions
Some of the most common charge reductions offered in a drunk driving plea bargain are:
If the prosecutor’s case is exceptionally weak, an experienced defense lawyer may even be able to negotiate a charge reduction to:
- Drunk in public (“drunk and disorderly”),5
- Drinking alcohol in a vehicle,6 or
- A traffic infraction (such as running a stop sign).
To help you better understand plea agreements, our California DUI lawyers discuss, below:
Plea bargaining has less uncertainty than trying for a “not guilty” verdict.
1. Trials vs. Pleas
There is no easy answer as to whether you should fight a DUI in a jury trial or accept a plea bargain. The decision should be made after consultation with an experienced defense lawyer.
Factors you will consider typically include:
- The apparent strength of the prosecution’s case,
- Whether you have prior convictions, and
- Your tolerance for risk.
As San Bernardino DUI defense attorney John Murray7 explains:
“Negotiating a resolution with prosecutors lets you avoid the uncertainty of a trial. In deciding whether to accept one or go to trial, we evaluate three factors: (1) how strong the evidence against you is; (2) how much tolerance you have for the risk of a trial versus the relative certainty of making a deal; and (3) how good a deal the prosecutor is offering considering the first two points.”
2. Reduced Sentences
Even when a prosecutor will not reduce drunk or drugged driving charges, it is often possible to get a sentencing reduction. This involves more lenient sentencing in exchange for a plea of “guilty” to driving under the influence.
If you go to trial and lose, the judge might sentence you to DUI probation. However, the judge could also impose:
- a hefty fine and/or
- time in jail.
By negotiating a deal, you leave nothing to chance. It is a way to eliminate the worst outcome in a driving under the influence case.
3. Reduced Charges
The best outcome of the plea bargaining process is a charge reduction to a lesser offense. This is easiest to come by with a first-time DUI. Though even with a subsequent offense or a DUI with injury, a charge reduction may be possible.
Depending on the case, advantages of a charge reduction can include:
- No mandatory suspension of your driver’s license,
- Lower fines,
- Little or no jail time,
- No mandatory DUI school,8
- Potentially not a “priorable” offense,9
- Less stigma than a drunk driving conviction, and
- In many cases, less negative impact on car insurance.
Note, however, that some charge reductions may still be “priorable.” This means they will still count as a prior conviction if you are arrested again for drunk or drugged driving.10
For instance, in California, “wet reckless” is a priorable offense.11 This can be important as penalties for drunk or drugged driving usually increase with each subsequent offense.12
DUI plea deals/charge reductions can often keep you out of jail.
4. Common Pleas
Common DUI charge reductions, least to most favorable, include:
- A so-called “wet reckless.”
- A so-called “dry reckless.”
- Exhibition of speed (“speed ex”) or speed contest.
- Drunk in public.
- Drinking alcohol in a vehicle.
- Traffic infractions.
Let’s take a closer look at each of these options.
“Wet” Reckless
“Wet reckless” is typically the first DUI charge reduction the prosecution will consider. This is a reckless driving conviction that contains a note in your criminal record that alcohol (or drugs) was involved in the offense. This is what is meant by the “wet” in the phrase “wet reckless.”
A “wet reckless” conviction has several advantages over a driving under the influence conviction. These include:
- Less jail time (if any),
- Lower fines, and
- Possibly no mandatory court-ordered license suspension (the DMV can still suspend your license, though it may allow you to drive with an ignition interlock device).
As noted above, a “wet reckless” is still “priorable.” This means that if you are convicted of driving under the influence within the state’s DUI “lookback period,” you will be sentenced as a repeat offender.
Example: Deanna is arrested for violating California Vehicle Code 23152(b) – driving with a BAC of .08% or higher. It is her first drunk driving offense.
Deanna’s defense attorney is able to get the drunk driving charge dropped to reckless driving – a wet reckless. Deanna is sentenced to probation with no jail time and a minimal fine.
Then three years later Deanna is convicted under Vehicle Code 23152(a) – California’s law on “driving under the influence.” California has a “lookback” period (also known as a “washout period”) of ten years for DUI. So Deanna faces second offense penalties (even though it is technically her first drunk driving conviction).13
“Dry” Reckless
“Dry reckless” is a reckless driving conviction that results from a plea deal to drunk driving charges. Unlike a “wet” reckless, there is no mention of alcohol or drugs in your record for a dry reckless conviction.14
The advantages of a dry reckless over a wet reckless are that the “dry” offense:
- Does not count as a prior DUI on your criminal or driving record, and
- May not have the same effect on car insurance premiums as a driving under the influence or wet reckless conviction.
The disadvantage of a dry reckless is that it is still a misdemeanor. It also adds points to your DMV driving record. Acquiring too many points in a given time period triggers a negligent operator license suspension.15
That said, we regard pleading to a dry reckless as a very good result in a driving under the influence case. If you are offered this deal, our legal advice is usually to take it.
Exhibition of Speed
Exhibition of speed (“speed ex” for short) is a less common charge reduction in a DUI case. It is typically offered as a plea bargain in cases in which the prosecution’s case is fairly weak.
“Speed ex” is still a misdemeanor, with penalties that can include:
- probation,
- fines, and
- possibly jail time.16
It also adds some number of points to your DMV driving record.
However, most of the time a “speed ex” charge results in:
- no jail time and
- fines and a period of probation that are lower than they would be for driving under the influence.
As such, it is usually a desirable outcome in drunk driving cases.
“Exhibition of speed” can often be negotiated as a charge reduction to drunk driving—even if you did not actually drive over the speed limit.
Drunk in Public
A drunk in public (“DIP”) charge17 is a less common product of DUI plea bargaining. It is typically offered when you were clearly drunk, but it was not obvious that you were driving.
For instance, DIP may be offered or requested if you were found passed out in a parked car.
Drunk in public is typically a misdemeanor, with penalties that can include:
- jail time and
- a small fine.18
Because it is not a driving-related offense, it will not lead to negligent operator points on your DMV record.
Drinking Alcohol in a Vehicle
In some circumstances, drunk driving might be plea-bargained down to a charge of consuming alcoholic beverages in a vehicle.19 This law makes it a crime for a driver or passenger to drink alcohol in a car on a public street.
Drinking while driving is typically agreed to when the prosecution’s case is weak: For instance, your blood test or breath test might show a blood alcohol concentration (“BAC”) that is just at or over the legal limit.
In such a case, the chemical test results may be enough to suggest “reasonable doubt.” This can create a situation in which neither the prosecution nor you want to chance a negative outcome at trial.
A conviction for drinking alcohol in a vehicle is a great result in most drunk driving cases. It is a non-criminal infraction carrying only a fine. Plus, it does not add points to your DMV record.20
Traffic Infractions
Prosecutors offer traffic infractions or moving violations as DUI plea bargains only as a last resort. This typically happens in cases in which they are fairly certain that driving under the influence charges will not stick.
Traffic infractions are not crimes and can be punished by a small fine only.21
Prosecutors sometimes offer a deal that consists of two infractions. These are known as a “pair of movers.” These typically consist of:
- one moving offense that can be worked off in traffic school and
- one moving offense that places DMV points on your driving record.
Examples of when traffic infractions or “movers” might be offered as a DUI charge reduction include:
- The prosecutor believes the police committed misconduct (such as Title 17 violations in California), or
- Chemical test results could not be validated by the prosecution’s criminalist.
Additional Reading
For more in-depth information, our law office suggests you refer to these scholarly articles:
- Police documentation of drunk-driving arrests: Jury verdicts and guilty pleas as a function of quantity and quality of evidence – Journal of Criminal Justice.
- Perceptions of plea bargains for driving under the influence (DUI) cases involving alcohol and marijuana – Psychology, Crime & Law.
- Race and Context in the Criminal Labeling of Drunk Driving Offenders: A Multilevel Examination of Extralegal Variables on Discretionary Plea Decisions – Criminal Justice Policy Review.
- When Driving Under the Influence Leads to Manslaughter: Perceptions of Plea Bargains – The American Journal of Psychology.
- An Evaluation of the Elimination of Plea Bargaining for DWI Offenders – National Highway Traffic Safety Administration.
Legal References:
- See, for example, California Vehicle Code 23540 VC (setting forth California’s 10-year “lookback” period for driving under the influence).
- See, for example, California Vehicle Code 23103.5 VC.
- See, for example, California Vehicle Code 23103 VC
- See, for example, California Vehicle Code 23109(c).
- See, for example, California Penal Code 647(f) – Drunk in public.
- See, for example, California Vehicle Code 23221 VC
- San Bernardino defense lawyer John Murray has been named one of the “100 Best” criminal defense attorneys by the National Trial Lawyers Association. He defends California clients throughout Southern California, including in Orange, San Bernardino and Los Angeles Counties.
- See, for example, California Vehicle Code 23538(b)(1) VC – 3-month DUI education program for first offenders.
- See, for example, California Vehicle Code 23622 VC.
- See, for example, California Vehicle Code 23538(b)(1).
- California Vehicle Code 23103.5 (c).
- See, for example, California Vehicle Code 23152
- See, for example, California Vehicle Code 23540.
- See, for example, California Vehicle Code 23103 VC — Dry reckless.
- See, for example, California Vehicle Code 12810 VC — Traffic points.
- See, for example, California Vehicle Code 23109(c) VC.
- See, for example, California Penal Code 647(f) – Drunk in public.
- Same.
- See, for example, California Vehicle Code 23221 VC.
- See, for example, California Vehicle Code 40000.1 VC – Infractions. See also Vehicle Code 12810 VC — Traffic points.
- See, for example, California Penal Code 19.8(b) PC – Infractions.