DUI Blogger

California DUI “aggravating factors” are facts and circumstances that…if present at the time you are arrested for driving under the influence…will either (1) result in a county jail sentence, or (2) increase your county jail sentence.

Some of the most common of these include: refusing to submit to a chemical test, driving with a child in the car, causing an accident, having a particularly high blood alcohol concentration, and driving recklessly at excessively high speeds. This last one…driving under the influence while recklessly driving at excessively high speeds…is, perhaps, one of the more difficult aggravating factors to prove.

This is because the others are pretty straight forward. However, the additional DUI penalty imposed for reckless driving and excessive speed is not. Before this sentencing enhancement can be imposed, the prosecutor must prove that you are (1) guilty of DUI, (2) guilty of driving at least 20mph over the speed limit on a street or at least 30mph over the speed limit on a freeway, and (3) guilty of reckless driving. All three factors must be proven before the required 60-day jail term can be added to your sentence.

Neither speeding nor reckless driving are enough in and of themselves to justify the imposition of this DUI enhancement. And speeding by itself isn’t typically enough to constitute reckless driving. As a result, just because an overzealous prosecutor charges you with this additional DUI penalty that is imposed for recklessly driving at excessive speeds while DUI, it does not necessarily mean that you will spend an additional 60 days in jail.

The Timberwolves’ center Al Jefferson was arrested this weekend on suspicion of DUI. Cops pulled him over after they allegedly saw him speeding and changing lanes without signaling. Jefferson then reportedly “failed” his field sobriety tests and submitted to a blood test before being arrested for driving under the influence.

As a Los Angeles DUI defense attorney, I immediately see two red flags: the first is that speeding is not indicative of drunk driving. And while the police seem to think it is, the National Highway Traffic Safety Administration (the nation’s leading authority on DUIs) does not.
The second problem is that Jefferson missed the last two and a half months of last season after injuring his right knee and undergoing surgery. This type of injury could easily (and innocently) explain a poor performance on any of the field sobriety tests (which should more appropriately be called field balance tests).

This is simply another example of why I always say that every DUI is worth fighting! It doesn’t matter how overwhelming the evidence appears, a good DUI defense lawyer can always find at least one legitimate issue to challenge.

Two men (ages 21 and 24) pleaded guilty to charges under Penal Code 191.5a gross vehicular manslaughter while intoxicated last Friday in Pomona, California. The charges stem from an incident when a female passenger was killed last year when one of the men lost control of his car while they were street racing. Each man faces ten years in the California State Prison.

What distinguishes Penal Code 191.5a gross vehicular manslaughter while intoxicated from Penal Code 191.5b “ordinary” vehicular manslaughter while intoxicated is the level of culpability.

If the men hadn’t been racing…but were guilty of DUI and had an accident that caused the woman’s death…they could have alternatively been charged with DUI with injury or ordinary vehicular manslaughter while intoxicated. Both of these charges are “wobblers” which means prosecutors have the discretion to charge the offenses as either misdemeanors or felonies.

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California Vehicle Code 23109 defines the misdemeanor crime of “speed contests” or “exhibition of speed.” Quite literally, this means a motorist on a highway racing against another vehicle or a timing device. We usually call this activity “drag racing” or “street racing.”

Prosecutors do indeed charge Vehicle Code 23109 for people arrested for actual exhibition of speed. But the statute is also commonly used as a lesser offense agreed to through California DUI plea bargaining. That is, prosecutors often agree to reduce DUI charges to a “speed ex” in an effort to settle the case.

Generally speaking, a defendant prefers a speed ex conviction to a DUI. The speed ex does not trigger a license suspension, and carries no mandatory penalties such as DUI school or jail time. Moreover, a speed ex does not count as a “DUI prior” on one’s record. If the charge gets reduced to a speed ex, and the defendant subsequently picks up another DUI, the new DUI will get treated as a first offense.

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