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Understanding The Elusive Wet Reckless Plea Bargain In Colorado DUI Cases

By H. Michael Steinberg Colorado DUI – DWAI – DUID Reckless Driving Criminal Defense Lawyer

Understanding The Elusive Wet Reckless Plea Bargain In Colorado DUI Cases – While many Colorado criminal defense lawyers tout they can easily negotiate a “wet reckless” plea bargain in a solid Colorado DUI case – the truth is this – a wet reckless plea bargain is rare and difficult, but not impossible, to obtain.

First – Exactly What IS A Wet Reckless Plea Bargain In Colorado?

A “wet reckless” is the name that is used – loosely – for changing the charge from a DUI or DWAI to the  “substitute charge” of reckless driving involving the use of alcohol. There is no real crime called “wet reckless.” You cannot be charged with a “wet reckless” – it is a kind of plea bargain that combines alcohol treatment with a plea to reckless driving – hence the term wet (alcohol) and reckless.

The benefit of negotiating a “wet reckless” plea rather than pleading guilty to DUI or DWAI is that a wet reckless conviction is not an alcohol or drug related driving offense. If a Defendant has prior DUI’s – or DWAI’s that could mean the difference between a lengthy jail sentence and no jail at all.

A “wet reckless” plea bargain means you will be pleading guilty to the lesser charge of reckless driving and NOT DUI or DWAI. Alcohol education classes are ordered just as they would be had the conviction been DUI -or DWAI.

Summary Of The Benefits of A Wet Reckless Plea Bargain In Colorado

  • The maximum fine for a wet reckless is significantly lower than the DUI.
  • No mandatory jail sentence.
  • Period of probation is less than a DUI.
  • Possible community service requirement is usually less than DUI.

The DMV Track

As noted in several other articles I have written, the DMV “side” of the case may not be directly impacted by the wet reckless plea bargain. While the wet reckless conviction may not result in a point suspension, the DMV may still seek to revoke the Defendant’s driver’s license based on a refusal to take a test or based on the BAC (blood alcohol) result in the case if a test is taken. Therefore the DMV hearing request is lost if it is not made within 7 days of the arrest. This will result in the suspension of the Defendant’s driver’s license notwithstanding whether a wet reckless is later negotiated in the criminal court.

The two “tracks” of the typical DUI – the DMV Track and the Criminal Court Track – run independent of one another.

Second – What Are The Legal Obstacles To Obtaining A Wet Reckless Plea Bargain In Colorado?

Having either prosecuted or defended DUI cases for more than 35 years, I have seen a massive “ratcheting down” of the authority of the “line DA” in plea bargaining DUI case. As a result of a change in the law many years ago, before a DA can plea bargain below a DWAI in a DUI – DWAI case, he or she is forced to go on record to fulfill the following requirement to the Judge:

“upon a good faith representation by the prosecuting attorney that the attorney could not establish a prima facie case if the defendant were brought to trial on the original alcohol-related or drug-related offense.” 42-4-1301 (2017).

The DA, and trust me this is hard for any DA, must tell the judge as an Officer of the Court their case is so weak they can proceed on the higher charge.

Here is the entire section of the relevant law:

“No court shall accept a plea of guilty to a non-alcohol-related or non-drug-related traffic offense or guilty to the offense of UDD from a person charged with DUI, DUI per se, DWAI, or habitual user; except that the court may accept a plea of guilty to a non-alcohol-related or non-drug-related traffic offense or to UDD upon a good faith representation by the prosecuting attorney that the attorney could not establish a prima facie case if the defendant were brought to trial on the original alcohol-related or drug-related offense.”

To plea bargain to a “wet reckless” the DA’s case must be – essentially  problematic and weak.

Third – How Does A Lawyer Negotiate A DUI Down To A Wet Reckless Plea Bargain In Colorado?

A Colorado District Attorney will never offer a “wet reckless” offer as a matter of sympathy or compassion. As noted he or she does it when there are considerable weaknesses in the case.

Term limits on elected District Attorneys has resulted in a great deal of political pressure to aggressively prosecute an easy target of the voters, so called “drunk drivers.”

The basic environment for a “wet reckless” offer – from my perspective is best veiwed from two levels. The “first level” of the process includes somebasic factors that must usually be present before launching into the “second level” of factors.

First Level Factors

To even begin to “qualify” for a “wet reckless” offer most DA’s will look for:

  • A lack of criminal record – especially prior DUI, DWAI’s or wet reckless convictions.
  • A BAC (blood alcohol level) coming in under the impaired limit of .05.
  • The Defendant fully cooperated and did not refuse BAC testing during the DUI investigation.
  • There was no accident or other kinds of aggravating factors such as a chase or insubordination at the scene.
  • No other charges in the case such as violation of a protection order or possession of marijuana.

Second Level Factors

Second level factors, in my opinion, are much more critical and may actually overcome the presence of one or more of the first level factors.

  • Was there weak, confused, or inconsistent evidence of impairment?
  • Were the BAC test results and/or the administration of the test questionable?
  • Were there issues regarding the constitutionality of the stop, or the arrest?
  • Can the State prove driving?
  • Was the investigation unreliable, confused or otherwise inconsistent as taken from the police reports, audio/visual evidence, witness statements and the like.
  • Was there an accident – if so, was there a proper accident reconstruction?

To summarize, plea bargaining involves uncovering and then calling attention to perceived weaknesses and mistakes made by the police in performing their investigation.

The “Wet Reckless” Plea Bargain Is No Panacea – There Are Serious Consequences Even If You Obtain The Plea Bargain In Colorado

“Reckless Driving” in Colorado, while less serious than a DUI or DWAI, is still very serious.

Reckless Driving is defined as:

“[a] person who drives a motor vehicle, bicycle, electrical assisted bicycle, or low-power scooter in such a manner as to indicate a wanton or a willful disregard for the safety of persons or property…”

Police and prosecutors see reckless driving as very dangerous. Reckless driving is often associated with “Fast and Furious” type driving or “road rage” incidents.

Reckless driving is a Class 2 traffic misdemeanor, which is a major traffic offense under Colorado law and is a “habitual traffic offense.” It means eight (8) points will be assessed against your motor vehicle record and a possible sentence of up to 90 days in jail and a fine of up to $300. A second and subsequent conviction for reckless driving can result in a sentence of up to six months in jail and a fine of up to $1,000 with ten days of jail time as a mandatory minimum.

On the other hand, a conviction for “wet reckless” in Colorado may mean the difference between keeping your employment or losing your livelihood.

Understanding The Elusive Wet Reckless Plea Bargain In Colorado DUI Cases

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The reader is admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.

Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael will be at your side every step of the way – advocating for justice and the best possible result in your case. H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case

H. Michael Steinberg Best Colorado Criminal Defense Lawyer FINAL– Email The Author at hmsteinberg@hotmail.com – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer. We encourage you to “vet” our firm. Over the last 30 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Understanding The Elusive Wet Reckless Plea Bargain In Colorado DUI Cases.

Summary
Understanding The Elusive Wet Reckless Plea Bargain In Colorado DUI Cases
Article Name
Understanding The Elusive Wet Reckless Plea Bargain In Colorado DUI Cases
Description
While many Colorado criminal defense lawyers tout they can easily negotiate a "wet reckless" plea bargain in a solid Colorado DUI case - the truth is this - a wet reckless plea bargain is rare and difficult, but not impossible, to obtain.
Author

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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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