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Many times I have people calling my office with a lot of misinformation about a DUI and what is commonly referred to as a "wet reckless" although there is no such term in the Calfornia Penal Code.  If you have been arrested or cited for a alcohol related offense give us a call. I have been helping people for more than 14 years in these type of situations and can get you through this time.

When you have been involved in an alcohol related driving offense there are many legal terms that will be thrown around.  The most common terms are DUI, DWI, and "wet reckless".  The term DUI stands for driving under the influence, and is interchangeable with the term DWI, which stands for driving while intoxicated.  The state of California only uses the term DUI when either drug or alcohol induced driving is at issue. 

There is a difference between a DUI conviction and a "wet reckless conviction.  

The "wet reckess" charge was devised to provide an incentive for DUI defendant to enter into a plea bargain, in fact wet reckless is not something you can be arrested for.  There is technically no actual law on the books that defines "wet reckless" instead 23103.5 allows a defendant to make an admission to a lesser charge of CVC 23103 driving with a notation that alcohol was involved.  

WHAT BENEFITS ARE THERE TO PLEADING TO A "WET RECKLESS" OVER A DUI?

1. Mandatory fines may be reduced. 

2. Mandatory alcohol related classes may be reduced. 

3. Jail time will likely be eliminated. This is helpful if you have a prior alcohol related driving offense. A "wet reckless" does not require mandatory jail time. 

4. Some California counties mandate the installation of an ignition interlock device on your vehicle after a dui conviction and a "wet" reckless can eliminate that requirement.

5. It could be helpful in in obtaining or keeping employment. 

WHAT A "WET RECKESS REDUCTION WILL NOT DO FOR YOU:

1. Your "wet reckless" will still be reported to the DMV and the DMV will treat it the same as a DUI in terms of suspension of your drivers license. 

2. The "wet reckless" will stay on your record for a period of 10 years.

3. You "wet" reckless will still be used as a prior offense for up to 10 years, the same as a DUI, if you are convicted of another alcohol related driving offense in the future. 

As you can see a "wet reckless will not eliminate many of the punitive requirements that accompany a DUI , but there are several reasons wha a "wet" reckless is preferrable to a DUI. 

The requirements or the reasons for a plea of "wet" reckless are many.  There could be a weak case, or the prosecutor cannot prove what your BAC was at the time of driving. There could be other reasons.  Usually we will sit down with a client and go over the facts of the case from there perspective, and then go through the case. 

we will look at mvers which are the cameras on top of the patrol vehicles

the body cams worn by the officers

read the calibration logs for the device used to measure the amount of alcohol in the blood. 

the police reports and any witness reports that we have that may contradict the officers statement.  We will then go to the DMV hearing to get further informaiton regarding the case and fight the DMV portion even if we are not successful at this poin the DMV hearing will further educate us on the possible defenses for your case. 

Also, if you have no priors and you have a BAC that is very close the legal limit of .08 or above then you may obtain a "wet" reckless, although I have had clients come in saying different Attorneys promised they could have a case reduced, promises should  not be made in criminal or for that matter any legal case all cases are different.  Stay away from Attorneys that tell you promises.  

If you have any questions give us a call at 559-441-1418.

 

If you have been convicted of a so called "wet reckless" or a dui you may be eligible to have that matter expunged from your record.  In practicing criminal law for more 15 years I know because we have done this for clients many times in the past. 

Getting a dui or wet reckless can be a emberrassing and life altering thing for most people.  It can and does happen to people from all walks of life.  The consequences have never bee more severe or strict than they are now. 

However, you need not face these consequences for the remainder of your life you can and should get the expungement process going to help you get your life back and not have to face some of the consequences, of this conviction forever. 

HOW DOES MY RECORD CHANGE AFTER THE EXPUNGEMENT?

All criminal databases used for employment background checks, both publice and private, will update automatically within 30 days after your DUI expungement is complete.  The process is that the Judge will send an order for an expungement to the California Department of Justice and then the Department of Justice will do an update on your ciminal history. 

WHAT ARE THE CRITERIA FOR A DUI OR "WET" RECKLESS EXPUNGEMENT IN CALIFORNIA?

1. You have successfully completed probation (inormal or formal) or if you were not gien probation one year must pass since your conviction date.  If still on probation check our our early termination of probation service early termination of probation expungement blog to be exact. 

2. You must have satisfied all requirements of your sentence (fines, restititution, mandatory programs, community service, classes, etc ). 

3. You are not currently charged with another criminal offense, on probation, for another criminal offense, or serving a sentence for another criminal offense. 

One thing  I would like to straighten out right now in this blog which I think is a misconception is that your DUI conviction does not automatically go away after a 10 year period.  This is a common misconception. After a 10 year period if you did not re-offend your dui would be treated as a first offense.   However, this does not mean the original DUI somehow went away.  The DMV will not count the DUI as points on your record after a period of 10 years.  Most employers look at your criminal record not your dui record for most cases.  This is not always the case where you must drive for your job and so forth. 

expunging the DUI from your record will not change your DMV printout, or DMV record.  The DUI  will remain on your DMV record for a period of 10 years regardless of whether the matter was expunged or not. Also, and expunged DUI  will still count on your record as a prior DUI  for a period of 10 years.  

WHAT ARE THE BENEFITS OF A "WET" RECKLESS AND DUI EXPUNGEMENT?

Other than the mental relief one can experience with an alcohol related misdemeanor expungement, there are also many tangible benefits that a "wet" reckless or DUI expungement offers:

1. Your past DUI or "wet reckless conviction will not show up on employer background checks. 

2. In almost all casses private employers cannot ask about convictions that were dismisssed under Penal Code section 1203.4 nor can a conviction that was dismissed be considered for employment purposes. 

3. You can truthfully and legally answer no on job applications when asked fi you have ever been convicted of a crime. 

4. You can greatly increase your earning capacity by becoming eligible for more employment oppurtunities. 

5. You can become eligible for many types of professional licenses and certificates. 

6. You can become eligible for better student loans.

7. You can become eligible for better housing assistance

8. You can tell friends and family that you have not been convicted of the DUI or Wet reckless. 

9. You have the satisfaction of forgetting the past for good and moving forward into a more positive future. 

If you have any further questions give us a call at 559 441-1418.

If you have any questions after reading this article you should give us a call so we can go over some of your rights with you.

ARE INFRACTIONS ELIGIBLE FOR EXPUNGEMENT?  

Traditionally infractions were not eligible for expungements in California under Penal Code 1203.4 however, there has been some changes to this law in 2011 which made some infractions eligible for expungement.  

DO INFRACTIONS SHOW UP ON CRIMINAL BACKGROUND INVESTIGATION?

Infractions are not considered criminal convictions and are akin to traffic violations.  In fact they are less serious than misdemeanor or Felony convictions.  They do however, show up on criminal background investigations.  Employers can still find infractions on your record sometimes as easily as looking into local criminal background databases. 

Call our office and we can help you get this matter expunged and updated in about 30 days.  Criminal databases are suposed to be updated every thirty days after having a signed order from a Judge updating and expunging the matter.  After the Judge signs the order it is ordered to be sent to the Calfornia Department of Justice for an update. 

THE EXPUNGEMENT PROCESS

The usual process is an investigation of your prior record with a close eye on all possible infraction cases that are on your record.  We then file a noticed motion and set  a court date.  Then the Judge will make a decision on your case sign the order and then the order is sent to the department of justice for an update of your criminal history.  

WHAT ARE SOME OF THE INFRACTIONS THAT CAN BE EXPUNGED?

1. Petty Theft

2. Marijuana Possession

3. Disturbing the peace

4. Tresspassing

5. Fraud

6. Illegal purchase of Alcohol

Like stated earlier although these offenses are not as serious as a felony or misdemeanor they may leave an ugly mark on your record.  Also, you may have moved on from this behavior a 1203.4 petition will set aside the guilty plea, or no contest plea, or factual finding of guilt, and set aside the conviction.  More importantly your criminal record will be permanently modified to show a dismissal rather than a infraction or a conviction.  Once the infraction is successfully expunged by the court you can truthfully tell employers, your family, and all other people that you have not been previously been convicted of a crime.  

WHAT ARE THE REQUIREMENTS TO QUALIFY FOR AN EXPUNGEMENT IN CALIFORNIA.  ALL THREE REQUIREMENTS MUST BE MET

1. You must have satisfied all the requirements of your sentence ( fines, restitution, mandatory programs etc.) 

2. You are not currently charged with another criminal offense, on probation, for another criminal offense, or serving a sentence for another criminal offense. 

3. The infraction cannot be a vehicular infraction. 

The entire process may take several weeks because you must get a court date and then have the matter heard and then the offense has to be updated on your record.  Sometimes it can take several weeks to get the matter placed on calendar depending on the county and how long those matters take to get on calendar.  

BENEFITS OF AN INFRACTION EXPUNGEMENT N CALIFORNIA

1. In almost all cases private employers cannot ask about convictions that were dismissed under Penal Code section 1203.4 nor can a conviction that was dismissed be considered for employment purposes.

2. Your expunged infraction conviction will not show up on most employer background checks. 

3. You can truthfully and legall answer no on private sector job applications when asked if you have ever been convicted of a crime.  

4. You can greatly increase your earning capacity by becoming eligible for more employment oppurtunities. 

5.  You can tell friends and family that you have not been convicted of a crime. 

6. You have the satisfaction of forgetting the past for good and moving forward into a more positive future. 

If you have any question give us a call 559 441-1418.

 

The crime of Manslaughter is usually part of a Homicide case.  If you or a loved one has been accused of Homicide give us a call.  You definitely need experienced Homicide representation.  As someone that has tried more than 10 Homicide cases to verdict and handled close to thirty other Homicides many of which ended up in the Manslaughter range we know how to represent you in this type of case.  

MANSLAUGHTER IS AN UNLAWFUL KILLING DONE WITHOUT MALICE PENAL CODE 192

If there has been a unlawful homicide without proof beyond a reasonable doubt of malice aforethought.  it can even be if a person acting with a conscious disregard for life and kwowing the conduct endangers the life of another, unintentionally, but unlawfully kills another in a sudden quarrel or in the heat of passion.  

Voluntary Manslaughter can result from an "implied intent" homicide. In other words you can be held liable for Manslaugther even if you did not intend to kill somoene as long as there was an act done with that was inherently dangerous to human life and with conscious disregard and unreasonable self defense then the crime would be manslaughter rather than involuntary manslaugter for example.

WHAT IS UNREASONABLE SELF DEFENSE?  

Any time a person acts with an honest but unreasonable belief in the need to use deadly force, then the defense then the defense can argue that the crime committed was volunary manslaugther, based upon the fact that person acted with an honest but unreasonable belief in the need to use deadly force and therefore, lacked the requisite mental state i.e. malice for murder.  

Note that this defense if different from stating that the person acted in a sudden/qurrel or heat of passion. 

HEAT OF PASSION KILLINGS

under this theory the person that committed the crime is said to be less morally culpable based on the fact he acted under passion rather than rational decision. 

Generally, if a person killed under provocation so great as to produce that response in a reaonable person, there is no malice of forethought and the crime is manslaughter.

This is again a generally speaking.  If you are charged with Murder or someone you know has been charged you should contact a homicide defense attorney that is experienced in these types of defenses.  

 TO REACAP THERE ARE TWO WAYS TO GET TO MANSLAUGHTER

the main two basis for voluntary manslaughter are heat of passion and imperfect self defense these are not elements of voluntary manslaugther rather they are ways in which malice either express or implied may be negated.  

If you hav further questions a confidential case evaluation should take place for your case.  Every case is different and there are many different scenerios which must be explored and the facts of your individual case must be evelauated.  Here, these are the general ideas for your case and not meant to be case specific. 

 

If you have been convicted of domestic violence you  may still be eligible for an expungement.  Under Penal Code 1203.4 you may petition the court to expunge your misdemeanor conviction for coroporal domestic violence.  It is always desirable to seek an expungement since your conviction wil not appear on a public database. ( it wil appear on law enforcement databases) should anyone conduct a criminal background check, including landlords or private employers.  

An expungement, however, does not result in complet eradication of your conviction record.  It remains accessible to persons considering you for public employment ie. law enforcement or peace officer positions, and court personel, for sentencing purposes, if you take the stand in your own defense an expunged crime may but not certainly may be used against you. and can be used as a sentence enhancement for a subsequent felony offense.

Another major benefit of obtaining an expungement is that it enables you to state on any application or rental application even under oath, that you were never convicted of a crime.  Unlike a Felony, you do not have to disclose your conviction, along with the fact that it was expunged if you apply to run for public office. 

 ELIGIBILITY FOR EXPUNGEMENT

If you were convicted of a misdemeanor under 273.5 or a Felony for which you served no state prision time, you qualify for an expungement of the conviction.  You may petition the court once you satisfy these conditions.

you completed all conditions of your sentence

you have not committed a subsequent felony

you have no criminal charges pending

you did not violate your probation. 

a probation violation does not necessarily render your conviction ineligible so long as you did not commit a serious misdemeanor or a felony offense.  A court will review your overal  criminal record and your need for an expungement order. 

If you have any questions give us a call as a former probation officer, deputy district attorney, and criminology instructor with more than 14 years of experience I have the knowlege to help.  559-441-1418

If you have been charged with domestic violence in Fresno County or anywhere else give me a call.  As an Attorney with more than 14 years of experience helping people in domestic violence cases I have the experience to help you through this.

In an earlier blog I described the difference between Felony and Misdemeanor domestic violence.  and I will discuss her generally the elements of Domestic Violence that the  prosecutor will have to prove in order to find you guilty of this crime.  

The prosecution will have to prove that you inflicted corporeal injury on victim and that the victim was either your spouse or person that he or she was cohibitating with

fiance or previously had a dating relationship.  the mother or father of his or her child.  

coroporeal injury resulted in a traumatic condition.

 

DID THE ACT OR INJURY SUBSTANTIALLY LEAD TO THE TRAUMATIC CONDITION?

For example you may have intended to strike your spouse or dating partner but not necessarily to cause the person to suffer an unintended injury.  Regardless, it is your direct physical act that was the cause of the or a substantial cause of the traumatic condition.  suffered by your spouse.  or dating partner.  

If you pushed your intimate partner down and the the person fell and broke his or her arm or even ankle.  your act was substantial factor that led to the injury.  It may not have been your intention to break the persons arm.  or to suffer a sprained ankle, but your act of pushing them is a substantial factor in them suffering the injury. 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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Fresno Criminal Defense Attorney
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Fresno, CA 93704
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