There are multiple ways the police could have used to determine your speed and the accuracy of those methods must be investigated.
In this post, I will explain California’s speeding & reckless driving enhancement for DUI and how we may challenge the police’s version of the facts.
Let’s get started…
Watch this video to see the different ways police might attempt to determine your speed.
Under California law, if you are arrested for driving under the influence and your speed exceeds the posted limit an enhancement is triggered if:
- You are 20 miles per hour or more over the posted speed limit (25 mph on urban streets) on a street or public roadway; or,
- 30 miles per hour or more over the posted speed limit on a freeway; and
- You were also driving recklessly
You need not have intended to cause injury or harm2.
It is conduct that shows willful and wanton disregard for the safety of persons or property3.
What Is Willful & Wanton Disregard?
If you include the conduct of speeding over a certain limit and driving recklessly with a DUI, then the likelihood of causing an accident and injuring others increases substantially so as to meet the definition of willful and wanton disregard for the safety of others.
- Racing down a freeway, moving across multiple lanes of traffic, and barely missing vehicles as you swerve in and out of traffic
- Running stop signs and red traffic signals
- Tailgating at high rates of speed
- Playing chicken–a game where cars come straight at each other before swerving off to the side
- Driving on the sidewalk or over a curb to get around traffic
- Forcing your car through a crowd of people
- Driving across oncoming traffic
- Speeding down the wrong-way on a one-way street, dodging vehicles along the way
- Evading a police officer.5
- Driving erratically, speeding, swerving in an off-street parking facility
Wouldn’t Just Driving Under The Influence Be Willful & Wanton Disregard?
Driving while under the influence of alcohol or drugs or with a BAC is considered hazardous and dangerous conduct that has a high probability of causing injury to the motorist, passenger or other motorists and pedestrians.
However, California courts have ruled that a DUI by itself does not constitute “willful and wanton disregard” for enhancement purposes6.
What If I Was Speeding But I Was Not Swerving or Driving Poorly?
Speeding 20 or 30 miles per hour over the legal limit, is not considered by itself to be conduct that is so egregious as to enhance the penalties. However, prosecutors may try to argue that speeding while driving under the influence is inherently reckless.
You must also have been driving in a reckless manner and have been under the influence7.
- Additional Days In Custody
The penalties for enhancement are substantial. If convicted, you face:
- A minimum 60-days in jail that is added to whatever sentence you receive for the DUI charge
- Mandatory participation in DUI classes
An enhancement to a DUI should be reserved only for conduct that is especially hazardous or egregious.
While driving 20 or 30 miles per hour over the speed limit while under the influence of alcohol or drugs is hazardous, it can be argued that the legislature intended only that excessive speed is accompanied by other reckless conduct before a court can impose an enhanced sentence.
An experienced defense lawyer can raise any number of defenses to DUI with enhancement based on speed and reckless driving:
The prosecution must still prove that your BAC was at least 0.08% or that you were under the influence.
Any number of challenges to the validity of the breath test results can be raised, if applicable, or to the officer’s conclusion that you were under the influence based on your driving conduct, demeanor, and performance on field sobriety tests.
Your speed was not 20 or 30 mph over the maximum, prima facie, or posted speed limit
If a speed gun or radar was not used, this can cast doubt on your actual speed.
If there was a speed gun, there are various challenges your defense attorney can mount to the accuracy of the results.
If you did any of the following:
- Made an illegal U-turn,
- Tried to change lanes but into the path of another car, or
- Went down a one-way street but realized your error and stopped,
This may not be considered willful and wanton disregard for the safety of others.
The prosecution must prove that you possessed or demonstrated an awareness that your actions presented a substantial and unjustifiable risk of injury or damage.
Can I get out of having to go to jail if convicted of DUI with a speed enhancement?
No, The judge in your case is mandated to give you a jail term if the speed enhancement charge is proven in your case.
What if I don’t think there is enough evidence to prove the speed enhancement charge in my case?
Additional Resources – Videos & Presentatons
At the Aizman Law Firm, our experienced attorneys can help you if you are facing a speed enhancement charge by proving that you were obeying all other traffic laws and that you were not driving recklessly when you were arrested.
If you need to speak to an attorney about your case or about a speed enhancement charge in your DUI case, please call our office at 818-351-9555 for a free confidential consultation.