Criminal Law

Reckless Driving

By Janet Portman, Attorney
A reckless driving charge may involve speeding, failing to obey red lights or stop signs, or distracted driving. In California, a "wet reckless" is a unique solution to a DUI charge.

Reckless driving is a criminal offense that’s punished as a misdemeanor in most situations. Misdemeanors are punished by incarceration in the local jail for up to one year (two years in Iowa), and can involve probation, fines, community service, restitution to victims harmed by the defendant’s conduct, and participation in counseling. Collateral consequences of a reckless driving conviction can include driver’s license suspensions and heightened insurance rates.

State statutes typically use terms such as "reckless," "recklessly," "reckless manner," or "reckless disregard" to describe the proscribed driving. These terms are not precise, yet courts have consistently found that they are sufficiently definite and certain to define the offense (a key requirement of a criminal statute, required by the due process clause of the Constitution, is that its meaning must be clear and definite enough to be understood by the average person). Read on to learn about other terms that are found in reckless driving statutes, and whether they are precise enough to withstand a challenge for vagueness.

What is Reckless Driving?

Laws defining reckless driving may use any or a combination of the following phrases, to describe the type of driving that is prohibited:

  • driving “recklessly,” “in a reckless manner,” with “reckless disregard” and the like.
  • driving that is “willful” or shows “wanton disregard [for the safety of persons or property]”
  • driving “at an immoderate rate of speed or in a careless, reckless, or negligent manner”
  • driving in a “careless manner,” or “carelessly and heedlessly”
  • driving “without due caution” or “without due caution and circumspection”
  • driving “with disregard for the safety of others”
  • driving in a manner constituting a "material deviation" from the standards of care that a reasonable person would observe under the circumstances, and
  • driving such that the driver “negligently fail[s] to maintain reasonable and proper control of the vehicle” (however, mere negligence, without a willful disregard for the consequences, is not sufficient to establish recklessness).

In some states, similar terms and phrases have not passed the requirement that they give drivers sufficient notice of the proscribed conduct. For example, laws that prohibit driving in a manner that “endangered," or was "endangering" [to the well-being of another]; or that was not “careful and prudent” or done in a “prudent manner” have not passed Constitutional muster—they are too vague and indefinite, and cannot support a prosecution.

Whether a particular course of driving is legally “reckless” will always depend on the circumstances.

Examples of Reckless Driving

Courts and juries have found defendants guilty of reckless driving when any or some of the following behaviors were proved by the prosecution:

  • driving in excess of the speed limit, in a dangerous way
  • passing red lights or stop signs, in circumstances that endanger others
  • failure to yield a right-of-way
  • failure to give hand or electronic signals, or to keep a lookout (such as while texting, talking on the phone, or fiddling with electronic music controls)
  • not having proper lights

However, a mere error of judgment, without more (such as passing a stopped car and colliding with an oncoming but hard-to-see car) usually will not amount to reckless driving. The same is true for skidding, without evidence of additional conduct.

Defendants have found that the lack of any injury or damage to persons or property does not preclude a conviction for reckless driving, nor will a last-minute attempt to avoid the same.

Is “Reckless Driving” a Lesser-Included Offense of Driving While Intoxicated?

Many people assume that if you’re charged with driving while intoxicated (“DUI”) and go to trial, you can always hope that the jury will find you guilty merely of reckless driving, or that the judge will knock down a verdict of DUI to a reckless. After all, it seems to reason that someone who is driving while under the influence must also be driving recklessly—what else but reckless is the choice to drive while intoxicated?

Courts, however, do not follow this reasoning, and judges throughout the country have held that the two crimes are separate and distinct. The essence of reckless driving lies not in the decision to drive, but in the manner in which the driving is done; the consumption of liquor need not be involved at all. By contrast, a DUI statute applies the moment the driver gets behind the wheel and begins to drive, having consumed a certain amount of alcohol; the driving itself need not be reckless at all, though the nature of the driving may be introduced to prove driving under the influence.

In states that follow this rule, when the only charge is a DUI, the judge will not give the jury the option of convicting the defendant of reckless driving instead. And, if the defendant is acquitted of the DUI charge, it is even possible for the prosecution to bring a new charge of reckless driving.

What Is a “Wet Reckless?”

California has a unique offense called a “wet reckless” (reckless driving involving the consumption of alcohol, Cal. Veh. Code section 23103.5). This crime was designed purely for plea bargaining purposes: A police officer cannot arrest for a wet reckless, a prosecutor cannot charge it, and a judge cannot instruct a jury that they can find a defendant guilty of it. Its only role is to allow someone charged with a DUI to plead to an offense that is less serious than a DUI, but more serious than a regular (“dry”) reckless.

California’s law came about in the 1970s, when many DUI offenses were plea-bargained down to reckless driving, an offense that involved (and still does) a smaller fine and less severe license consequences than a DUI conviction. Importantly, a reckless driving conviction does not “count” as a prior conviction when the defendant incurs a subsequent DUI conviction (prior DUI convictions increase the punishment of subsequent convictions).

Bothered by these bargains, the Legislature passed a bill providing that when any such bargain is made, the prosecutor must state “on the record” (in open court, in a statement taken down by the court reporter) that the offense involved the consumption of alcohol or drugs. This new offense resulted in greater punishment than ordinary reckless driving, and most importantly, the conviction will count as a “prior” for purposes of sentencing should the defendant incur a subsequent DUI conviction.

Questions to Ask Your Attorney

  • If I have an accident, am I likely to be charged with reckless driving if I was using my cell phone, a GPS system, or accessing music via my phone?
  • If my blood alcohol level was below the legal limit when my accident happened, could I be charged with reckless driving instead?
  • I was in an accident at an intersection that’s on the list of top accident sites in my area. Is it a valid defense to reckless driving that the intersection is inherently dangerous?

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