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PETER F. IOCONA
ATTORNEY AT LAW

22982 LA CADENA DR #239
LAGUNA HILLS, CA. 92653




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23152 VERDUGO DR #201
LAGUNA HILLS, CA. 92653

 



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ALAN CASTILLO AND PETER F.  IOCONA BOTH SELECTED AS ONE OF ORANGE COUNTY'S TOP-RATED DEFENSE ATTORNEYS

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RECKLESS SPEED ENHANCEMENT

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Peter F. Iocona - Top 100 Trial LawyersPeter F. Iocona - Super Lawyers Rated Orange County DUI Lawyer  Peter F. Iocona - Top-Rated DUI Criminal Defense Attorney
 Peter F. Iocona - Top-Rated Orange County DUI Defense Attorney

RECKLESS SPEED ENHANCEMENT - CVC 23582

Where it is pled and proven (or admitted) that a defendant drove 30 or more m.p.h. over the maximum, prima facie, or posted speed limit on a freeway, or 20 or more m.p.h. over the maximum, prima facie, or posted speed limit on any other street or highway, and that he did so in violation of CVC §23103 (i.e., reckless driving) while concurrently violating Vehicle Code §§ 23152 or 23153, an additional and consecutive term of 60 days jail shall be imposed. CVC § 23582. However, the Court does retain discretion to strike the enhancement in the interests of justice. CVC § 23582(c).

Where the enhancement is based solely on a “reckless driving” allegation, speed alone is generally insufficient to prove the enhancement. People v. Thurston (1963) 212 Cal.App.2nd 713,714-715. See also, People v. Edwards (1976) 18 Cal.3rd 796 and People v. Yarborough (1998) 65 Cal.App.4th 1417 which can be used to argue improper dual use of facts.

CALJIC 16.841 provides that:

The rate of speed at which a vehicle is driven considered as an isolated fact and simply in terms of so many miles per hour is not alone proof of reckless driving . . . but is a factor to be considered . . . in light of all the surrounding circumstances. . .

People v. Nowell (1941) 45 Cal.App.2nd Supp. 811-814 (speeding may constitute recklessness based on the surrounding circumstances) The Nowell Court noted:

The word “wantonness” includes the elements of consciousness of one’s conduct, intent to do or omit the act in question, realization of the probable injury to another, and a reckless disregard of the consequences. [Citations]

The word "willful" in this connection means ‘intentional’ [Citations]. The intention referred to relates to the disregard of safety, not merely to the act done in disregard thereof.

See also CALCRIM 2200 and the use notes which also refer to the Nowell case.

To establish the offense of reckless driving in violation of CVC § 23103, it must be shown that the defendant drove his/her vehicle and intentionally did an act with the knowledge that injury to another was probable or acted with a wanton and reckless disregard for the safety of others and in reckless disregard of the consequences of his acts. People v. Allison (1951) 101 Cal.App.2d Supp. 932.

The act of driving the vehicle while under the influence of alcohol and/or drugs or a combination thereof does not, in and of itself constitute a willful or wanton disregard for the safety of other persons and/or property. People v. Clenney (1958) 165 Cal.App.2nd 241, 248. Note also that CVC § 23582(d) specifically provides that: “A finding of driving in that manner shall be based on facts in addition to the fact that the defendant was driving while under the influence of alcohol, any drug, or both, or with a specified percentage of alcohol in the blood.”

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