Virginia Misdemeanor Reckless Driving Laws and Defenses Explained by Criminal Defense Attorney | Alexandria & Fairfax

Virginia Reckless Driving Defense Attorney in Alexandria and Fairfax

Reckless Driving Defense Attorney (703) 870-6868

This article is written by Reckless Driving defense attorney Marina Medvin, who is located in Alexandria, Virginia, and Fairfax, Virginia. She represents individuals charged with the crimes described below in Alexandria, Arlington, Fairfax, Falls Church, Vienna, Manassas, and Prince Prince William. Please call (703)870-6868 for a consultation request.

WHAT IS RECKLESS DRIVING IN VIRGINIA?

Reckless Driving is a misdemeanor criminal charge in Virginia. If your speed was either 20 miles over the speed limit, or if you were going at a speed over 80 miles per hour, then your “speeding ticket” is likely a Virginia Uniform Summons for Reckless Driving. And so, what looks like a regular speeding ticket may be much more than just a lot of points on your driving record. Reckless Driving is a Class 1 Misdemeanor under Virginia VA Code § 46.2-862 “Exceeding speed limit” – the same level of offense in Virginia as a DUI, assault, or larceny charge. That yellow ticket that you signed is actually an alternative version of an arrest for reckless driving. RECKLESS DRIVING ISN’T THE EVERYDAY SPEEDING TICKET. This charge frequently appears as “82-1-6″ on a Fairfax Driving Summons.

CONSEQUENCES OF A RECKLESS DRIVING CONVICTION

This misdemeanor offense is very serious for purposes of civilian employment, getting into universities, government employment, obtaining / maintaining a security clearance, military (Army, Marines, Navy, Air Force) punishment, admission to a state bar, law enforcement / police officer employment, and immigration and naturalization, amongst others. Individuals with these concerns must discuss the implication with their attorneys.

VIRGINIA RECKLESS DRIVING PENALTIES

A maximum penalty for a Reckless Driving conviction may result in:
(1) up to 1 year in jail,
(2) up to 6 months suspension of your driver’s license / privileges,
(3) a total of 6 points on a Virginia driver’s license, and,
(4) up to a $2,500.00 fine.

WILL I GO TO JAIL FOR RECKLESS DRIVING?

It depends on your speed and on the city or county in which you are charged. Going above 90 MPH will make you a candidate. Driving above 100 MPH is a sure thing. In a famous case in 2006, a law student who was driving 126 MPH went to jail to 12 days (full story on Washington Post web site). Other factors which may lend you in jail would be your behavior with the police officer, other circumstances leading up to ticket, and your criminal record and traffic history.

SHOULD I GET A LAWYER FOR MY RECKLESS DRIVING CHARGE?

While no one would plead guilty to a DUI / DWI (probably because it is a more popular or commercial crime) drivers unintentionally plead guilty to Reckless Driving, a crime of the same criminal magnitude as a DUI, on a much more frequent basis. Due to the serious nature of a VA Reckless Driving offense, it is important to fight the “ticket” for Reckless Driving in court, and not just pay it when you get home. By paying the Reckless Driving “ticket” before your court date, you are actually pleading guilty to the Class 1 Misdemeanor offense. The first thing that you should do after you get home is call a lawyer and discuss the details of your case. Your circumstances may make you eligible for various punishment reductions and charge reductions, and if you are really lucky, maybe even dismissal of the charge or a non-prosecution of the charge!

Additionally, trying to represent yourself without a lawyer is strongly discouraged as the legal background that lawyers have on these laws and the experience with trial rules creates an incomparable advantage to self-representation.

WHAT ARE DEFENSES TO A RECKLESS DRIVING CHARGE?

This crime, as any other, must be proven beyond a reasonable doubt in a courtroom. Defenses include insufficient testimony from the police or other witnesses, improper calibration of lidar or radar, improper testing of lidar or radar, expired certification of the lidar or radar, amongst others.

Plea offers include breaking down the charge to simple speeding, improper driving, or dismissing it all together.

CAR ACCIDENT RESULTING IN RECKLESS DRIVING TICKET

Police officers and state troopers who show up at the scene of an accident after it took place will frequently write Reckless Driving tickets. The problem with these in court is that officers almost never have sufficient evidence to actually get a judge to convict the accused of the offense. The evidence of an vehicle accident, on its own, is insufficient for a conviction. If this situation applies to you, make sure to consult with a lawyer immediately.

LIST OF ALL VARIATIONS OF THE VIRGINIA RECKLESS DRIVING OFFENSE

1) The most common charge is for “Reckless Driving by Speed.” This charge applies to speeding 20 miles over the speed limit and/or driving above 80 miles per hour in Virginia. This is charged under Virginia VA Code Section 46.2-862 and is explained above.

2) The second most common charge in Virginia is for “Reckless Driving Generally.” This charge applies to the manner of your driving and is evaluated by whether your driving manner endangered either a person or property. This is charged under Virginia VA Code Section 46.2-852.

3) “Reckless Driving – Driving vehicle which is not under control” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who drives a vehicle which is not under proper control or which has inadequate or improperly adjusted brakes. This is charged under Virginia VA Code Section 46.2-853.

4) “Reckless Driving – Passing on or at the crest of a grade or on a curve” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who, while driving a vehicle, overtakes and passes another vehicle proceeding in the same direction, on or approaching the crest of a grade or on or approaching a curve in the highway, where the driver’s view along the highway is obstructed, except where the overtaking vehicle is being operated on a highway having two or more designated lanes of roadway for each direction of travel or on a designated one-way roadway or highway. This is charged under Virginia VA Code Section 46.2-854.

5) “Reckless Driving – Driving with driver’s view obstructed or control impaired” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who drives a vehicle when it is so loaded, or when there are in the front seat such number of persons, as to obstruct the view of the driver to the front or sides of the vehicle or to interfere with the driver’s control over the driving mechanism of the vehicle. This is charged under Virginia VA Code Section 46.2-855.

6) “Reckless Driving – Passing two vehicles abreast” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who passes or attempts to pass two other vehicles abreast, moving in the same direction, except on highways having separate roadways of three or more lanes for each direction of travel, or on designated one-way streets or highways. This is charged under Virginia VA Code Section 46.2-856.

7) “Reckless Driving – Driving two abreast in a single lane” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who drives any motor vehicle, including any motorcycle, so as to be abreast of another vehicle in a lane designed for one vehicle, or drives any motor vehicle, including any motorcycle, so as to travel abreast of any other vehicle traveling in a lane designed for one vehicle. This is charged under Virginia VA Code Section 46.2-857.

8 ) “Reckless Driving – Passing at a railroad grade crossing” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who overtakes or passes any other vehicle proceeding in the same direction at any railroad grade crossing or at any intersection of highways unless such vehicles are being operated on a highway having two or more designated lanes of roadway for each direction of travel or unless such intersection is designated and marked as a passing zone or on a designated one-way street or highway, or while pedestrians are passing or about to pass in front of either of such vehicles, unless permitted so to do by a traffic light or law-enforcement officer. This is charged under Virginia VA Code Section 46.2-858.

9) “Reckless Driving – Passing a stopped school bus” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who fails to stop, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children, the elderly, or mentally or physically handicapped persons, and to remain stopped until all the persons are clear of the highway, private road or school driveway and the bus is put in motion. This is charged under Virginia VA Code Section 46.2-859.

10) “Reckless Driving – Failing to give proper signals” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who fails to give adequate and timely signals of intention to turn, partly turn, slow down, or stop. This is charged under Virginia VA Code Section 46.2-860.

11) “Reckless Driving – Driving too fast for highway and traffic conditions” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who exceeds a reasonable speed under the circumstances and traffic conditions existing at the time, regardless of any posted speed limit. This is charged under Virginia VA Code Section 46.2-861.

12) “Reckless Driving – Failure to yield right-of-way” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who fails to bring his vehicle to a stop immediately before entering a highway from a side road when there is traffic approaching on such highway within 500 feet of such point of entrance, unless (i) a “Yield Right-of-Way” sign is posted or (ii) where such sign is posted, fails, upon entering such highway, to yield the right-of-way to the driver of a vehicle approaching on such highway from either direction. This is charged under Virginia VA Code Section 46.2-863.

13) “Reckless Driving – Reckless driving on parking lots” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who operates any motor vehicle at a speed or in a manner so as to endanger the life, limb, or property of any person: (1) On any driveway or premises of a church, school, recreational facility, or business property open to the public; or (2) On the premises of any industrial establishment providing parking space for customers, patrons, or employees; or (3) On any highway under construction or not yet open to the public. This is charged under Virginia VA Code Section 46.2-864.

14) “Reckless Driving – Racing” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who engages in a race between two or more motor vehicles on the highways in the Commonwealth or on any driveway or premises of a church, school, recreational facility, or business property open to the public in the Commonwealth shall be guilty of reckless driving, unless authorized by the owner of the property or his agent. This is charged under Virginia VA Code Section 46.2-865. It is important to note the VA definition of racing, as police officers and lawyers alike tend to mistake speeding contests for actual racing as is defined by Virginia law. racing requires a pre-defined start point and pre-defined end point. Just because two cars are going very fast next to each other and trying to beat the other’s speed does not mean that in fact they are racing under this reckless driving code section.

All of these reckless driving tickets are punishes as Class 1 misdemeanor criminal offenses. the penalty is described above.

FEDERAL RECKLESS DRIVING OFFENSE

Another important factor about VA Reckless Driving is speeding along the GW Parkway in Alexandria, VA or any other Federal territory located in Virginia. Federal law punishes for Reckless Driving the way that it is defined in the Virginia code. The main difference is that the prosecutors in Federal Court in the Eastern District of Virginia (ED VA) is much more serious and having a Federal offense on your criminal record is considered more consequential for purposes of your criminal record. As stated before, first thing that you should do after you get home is call a lawyer and discuss the details of your case. Your circumstances may make you eligible for various punishment reductions and charge reductions, and if you are really lucky, maybe even dismissal of the charge or a non-prosecution of the charge! Read more by clicking here.

AGGRESSIVE DRIVING IN VIRGINIA

VA Code 46.2-868.1 criminally penalizes individuals for Aggressive Driving. Aggressive driving is a Class 2 misdemeanor. However, aggressive driving with the intent to injure another person is as a Class 1 misdemeanor.

A person is guilty of aggressive driving if:
(i) the person violates one or more of the following:
§ 46.2-802 (Drive on right side of highways),
§ 46.2-804 (Failure to observe lanes marked for traffic),
§ 46.2-816 (Following too closely),
§ 46.2-821 (Vehicles before entering certain highways shall stop or yield right-of-way),
§ 46.2-833.1 (Evasion of traffic control devices),
§ 46.2-838 (Passing when overtaking a vehicle),
§ 46.2-841 (When overtaking vehicle may pass on right),
§ 46.2-842 (Driver to give way to overtaking vehicle),
§ 46.2-842.1 (Driver to give way to certain overtaking vehicles on divided highway),
§ 46.2-843 (Limitations on overtaking and passing),
any provision of Article 8 (§ 46.2-870 et seq.) of Chapter 8 of Title 46.2 (Speed),
or § 46.2-888 (Stopping on highways);
(ii) AND that person is a hazard to another person OR commits one of the offenses above with the intent to harass, intimidate, injure or obstruct another person.

RECENT VIRGINIA SUPREME COURT AND COURT OF APPEALS DECISIONS GUIDING TRIAL COURTS IN APPLICATION OF THESE LAWS

Chibikom v. Com. Va: Court of Appeals 2009

Doris S. Chibikom was convicted in a jury trial of reckless driving by speed, in violation of Code § 46.2-862.[1] On appeal, she contends the trial court erred in denying her proposed jury instruction that improper driving, an offense set forth in Code § 46.2-869,[2] is a lesser-included offense of reckless driving by speed. Finding no error, we affirm the trial court’s judgment and Chibikom’s conviction.

I. BACKGROUND

The relevant facts in this case are not in dispute. On August 10, 2007, Chibikom was driving on a highway in the Commonwealth in excess of eighty miles per hour. As a *296 result, Chibikom was issued a summons for reckless driving by speed. On June 11, 2008, the trial court conducted a trial on the charge. At the close of the evidence, the Commonwealth proffered a jury instruction instructing the jury that in order to find Chibikom guilty of reckless driving by speed, the jury had to find beyond a reasonable doubt that Chibikom was traveling on a public highway and that she was traveling in excess of eighty miles per hour.

Chibikom objected to the Commonwealth’s instruction on the ground that it failed to include the lesser-included offense of improper driving under Code § 46.2-869. Chibikom proffered a jury instruction containing the reckless driving by speed offense under Code § 46.2-862. In addition, her proposed instruction included language closely tracking Code § 46.2-869, that is, that anyone found guilty of reckless driving, but with slight culpability, could instead be found guilty of improper driving.

The Commonwealth responded by arguing that improper driving is not a lesser-included offense of reckless driving by speed. Specifically, the Commonwealth contended that reckless driving by speed is a strict liability offense and the statute prohibiting reckless driving by speed does not refer to degrees of culpability. The trial court agreed with the Commonwealth and denied Chibikom’s proposed instruction. The trial court instructed the jury in accord with the Commonwealth’s proffered instruction.

Subsequently, the jury found Chibikom guilty as charged. This appeal followed.

II. ANALYSIS

On appeal, Chibikom contends the trial court erred by denying her proposed jury instruction that improper driving, as prohibited in Code § 46.2-869, is a lesser-included offense of reckless driving by speed set forth in Code § 46.2-862. We disagree.

The legal principles applicable to this appeal are well settled. “`The trial judge has broad discretion in giving or denying instructions requested.’” Gaines v. Commonwealth, 39 Va.App. 562, 568, 574 S.E.2d 775, 778 (2003) (en banc) (quoting John L. Costello, Virginia Criminal Law and Procedure § 60.6-8, 810 (2d ed. 1995)). “A reviewing court’s responsibility in reviewing jury instructions is `to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises.’” Darnell v. Commonwealth, 6 Va.App. 485, 488, 370 S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). Because the issue presented is a question of law involving the interpretation of Code § 46.2-869, we review the trial court’s statutory interpretation and legal conclusions de novo. See Sink v. Commonwealth, 28 Va.App. 655, 658, 507 S.E.2d 670, 671 (1998).

“When reviewing a trial court’s refusal of a proposed lesser-included offense jury instruction, we must first decide whether the proffered instruction presents a lesser-included offense.” Sanchez v. Commonwealth, 32 Va.App. 238, 241, 527 S.E.2d 461, 463 (2000). “The elements of the greater offense as charged must be examined in relation to the purported lesser offense, and where every commission of the greater offense is also a commission of the lesser offense, a lesser offense may be deemed to exist.” Id. “A lesser[-]included offense is an offense which is composed entirely of elements that are also elements of the greater offense.” Kauffmann v. Commonwealth, 8 Va.App. 400, 409, 382 S.E.2d 279, 283 (1989).

For a defendant to be found guilty of reckless driving by speed under Code § 46.2-862, the Commonwealth must prove that the defendant was driving on a highway in the Commonwealth, and was driving “(i) at a speed of twenty miles per hour or more in excess of the applicable maximum speed limit or (ii) in excess of eighty miles per hour regardless of the applicable maximum speed limit.” Code § 46.2-869, the improper driving statute, provides in relevant part, that “[n]otwithstanding the foregoing provisions of this article, upon the trial of any person charged with reckless driving where the degree of culpability is slight, the court in its discretion may find the accused not guilty of reckless driving but guilty of improper driving.” In addition, “an attorney for the Commonwealth may reduce a charge of reckless *297 driving to improper driving at any time prior to the court’s decision….” Code § 46.2-869.

Upon our review of Code § 46.2-869, it is clear that improper driving is not a lesser-included offense of reckless driving by speed. Every commission of reckless driving by speed does not also constitute a commission of improper driving. In addition, improper driving is not composed entirely of the elements of reckless driving by speed. Improper driving requires an additional finding of slight culpability, an element excluded from the reckless driving by speed statute. Thus, we conclude that improper driving is not a lesser-included offense of reckless driving by speed.

Moreover, the improper driving statute states that the “court in its discretion” may reduce the reckless driving charge to improper driving “where the degree of culpability is slight.” “When interpreting a statute, courts `are required to ascertain and give effect to the intention of the legislature, which is usually self-evident from the statutory language.’” Johnson v. Commonwealth, 53 Va.App. 608, 612, 674 S.E.2d 541, 543 (2009) (quoting Va. Polytechnic Inst. & State Univ. v. Interactive Return Serv., 271 Va. 304, 309, 626 S.E.2d 436, 438 (2006)). Furthermore, “[w]hen statutory language is clear and unambiguous, there is no need for construction by the court; the plain meaning of the enactment will be given it.” HCA Health Servs. of Va., Inc. v. Levin, 260 Va. 215, 220, 530 S.E.2d 417, 420 (2000). The plain and unambiguous reading of the improper driving statute makes clear that authority rests with the trial judge and not the jury to make the lesser degree of culpability determination. In the alternative, an attorney for the Commonwealth may reduce a reckless driving charge to improper driving at any time prior to the court’s decision. Thus, only the trial judge, or the prosecutor before the verdict is rendered, has the prerogative to reduce a reckless driving charge to improper driving under Code § 46.2-869.[3]

Chibikom also claims the trial court erred in rejecting her proposed instruction because the instruction was “supported by more than a scintilla of evidence.” Boone v. Commonwealth, 14 Va.App. 130, 132, 415 S.E.2d 250, 251 (1992) (“If any credible evidence in the record supports a proffered instruction on a lesser[-]included offense, failure to give the instruction is reversible error…. Such an instruction, however, must be supported by more than a mere scintilla of evidence.”). Because we conclude that improper driving is not a lesser-included offense of reckless driving by speed, we need not address whether the evidence supported Chibikom’s proposed instruction.

III. CONCLUSION

For these reasons, we affirm the judgment of the trial court and Chibikom’s conviction.

Affirmed.

NOTES

[1] Code § 46.2-862 states as follows:

A person shall be guilty of reckless driving who drives a motor vehicle on the highways in the Commonwealth (i) at a speed of twenty miles per hour or more in excess of the applicable maximum speed limit or (ii) in excess of eighty miles per hour regardless of the applicable maximum speed limit.

[2] Code § 46.2-869 provides, in pertinent part, as follows:

Notwithstanding the foregoing provisions of this article, upon the trial of any person charged with reckless driving where the degree of culpability is slight, the court in its discretion may find the accused not guilty of reckless driving but guilty of improper driving. However, an attorney for the Commonwealth may reduce a charge of reckless driving to improper driving at any time prior to the court’s decision….

[3] Indeed, had the legislature intended to permit the jury to make the lesser-degree of culpability determination under Code § 46.2-869, it could have included language in Code § 46.2-869 to reflect that intent. See, e.g., Code § 18.2-10(e), (f) (penalty for a Class 5 or 6 felony may be reduced “in the discretion of the jury or the court trying the case without a jury”); Code § 18.2-22(a)(3) (the punishment for conspiring to commit a felony where the maximum punishment is less than five years may be reduced “in the discretion of the jury or the court trying the case without a jury”); Code § 18.2-91 (penalty for statutory burglary may be reduced “in the discretion of the jury or the court trying the case without a jury”); Code § 18.2-95 (penalty for grand larceny may be reduced “in the discretion of the jury or the court trying the case without a jury”).

*This article is for your personal information only and is not intended as legal advice. Nothing herein shall create an attorney – client relationship. This area of the law is very complex. Every case is different and the information contained herein is general. This information is not intended to be legal advice. Nor is this material intended to replace consultation with a lawyer. Always consult a licensed lawyer for your particular case. Call 703.870.6868 for a consultation.
+