1. Virginia Reckless Driving Statutes
There are 14 different types of reckless driving in Virginia, but all of them qualify as a class 1 misdemeanor in Virginia.
1.1. General Reckless Driving § 46.2-852
The main reckless driving statute in Virginia can be found in the Code of Virginia section 46.2-852. Reckless driving under this statute is committed by someone who drives his/her vehicle “on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person” regardless of the posted speed limit.
What Does Reckless Mean?
In Virginia, within the context of this statute, reckless means “a disregard for the driver of a motor vehicle for the consequences of his act and an indifference to the safety of life, limb or property.” Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628, 630 (1970).
Car Accidents Resulting in a Reckless Driving Charge:
Many drivers charged with Reckless Driving under § 46.2-852 are charged after being involved in a car accident where the officer deems the driver to be responsible. In order to be convicted under this statute the driver must have been driving in a speed or manner that endangered the life, limb, or property of another person. There are numerous serious legal issues that can arise from a car accident.
1.2. Reckless Driving by Speed § 46.2-862
In Virginia the law provides for a criminal charge against persons driving at certain speeds over the speed limit. If you were driving at more than 20 mph over the speed limit or over 85 mph regardless of how many mph over the speed limit you were driving you may be found guilty of reckless driving based on speed. See Va. Code § 46.2-862. It is common for Officers to charge a driver with reckless driving even when they were going less than 20 mph but were over the 80 mph threshold.
There are a number of different ways to handle these cases and many of the possible solutions will depend on the judge hearing your case in the specific locality you received the ticket. Some possible factors that may impact your case are your driving record, the specific number of miles per hour over the threshold you were driving, and whether your speedometer was calibrated correctly.
A ticket or charge for reckless driving based on speed cannot be prepaid. In many jurisdictions you will be required to appear in court (or have a lawyer appear for you depending on local rules) or a warrant for your arrest may be issued for your failure to appear. You will need to check with a lawyer in the jurisdiction you received your ticket to know how that jurisdiction handles these cases.
1.3. Reckless Driving Based on Failure to Maintain Control or Faulty Brakes § 46.2-853
§ 46.2-853 of the Code of Virginia provides that a driver who drives a vehicle which is not under proper control or which has inadequate or improperly adjusted brakes on any highway in the Commonwealth is guilty of reckless driving pursuant to this section. This offense is commonly charged in traffic accident cases.
1.4. Other types of Reckless Driving
There are 11 other types of reckless driving in Virginia that are less commonly charged. They are: Passing When View is Obstructed § 46.2-854, Car Overloaded § 46.2-855, Passing Two Vehicles Abreast § 46.2-856, Two Vehicles In One Lane § 46.2-857, Passing at an Intersection or Railroad Grade Crossing § 46.2-858, Passing a Stopped School Bus § 46.2-859, Failing to Give Proper Signals § 46.2-860, Driving Too Fast for Traffic Conditions § 46.2-861, Failure to Yield the Right of Way § 46.2-863, and Racing § 46.2-864,65.
2. Consequences of Reckless Driving in Virginia
Reckless driving is a class 1 misdemeanor, which allows for a $2500 fine. The actual fine you will receive will vary greatly, in part based on your record, the local court policy, your speed if applicable, and numerous other factors. In many cases, the average fine for a reckless driving ticket will be computed as if the ticket was a regular speeding ticket, which is generally $6 for ever mph over the speed limit. Again, this varies depending on the local jurisdiction's rules.
2.2. Suspended License
Not surprisingly, many people who receive reckless driving tickets depend on their license for work. Some judges will suspend driver's licenses in cases where the driver was going more than twice the speed limit (i.e. 51/25). Like jail time, traveling at speeds over 90 are more likely to result in a suspended license depending on the local rules. Driver's with CDL's may lose their CDL as well.
Active jail time is not a typical penalty for reckless driving. However, for those drivers who were caught speeding at more than 95 or 100 mph jail time does become a more realistic possibility. It is important to speak with a traffic attorney in the area you received your ticket to get a better understanding of how the judges in your area handle this issue.
2.4. Driving & Criminal Record
Virginia drivers will be assessed 6 demerit points on his/her record, and the conviction will stay on his driving record for 11 years. Additionally, if convicted of reckless driving, the driver will have a permanent criminal record. Persons convicted of a crime in Virginia cannot expunge that crime from his criminal record. For the effect of tickets on out of state drivers please see my post on this topic here.
2.5. Insurance Premium Increases
There are numerous factors that determine the extent to which a person's driver's insurance will increase. To understand what will occur in your particular case it is important to speak with your insurance agent.
2.6 Loss of Employment
Drivers that depend on their license for a living may lose their job as a result of a conviction or even a license suspension as a result of a conviction. Please see my page on CDL's here. Even for driver's with CDL's a conviction may still cause employment problems. See my page on this issue here.
3. Virginia Reckless Driving Defenses
The best way to defend a reckless driving case in Virginia will first depend on the specific type of reckless driving the defendant has been charged with. However as a general rule the Commonwealth must prove in any criminal case against a defendant that he/she has committed each and every element of the crime beyond a reasonable doubt. The prosecutor/officer must also prove that the defendant was driving in the jurisdiction where the case is being tried.
3.1. General Reckless Driving
To be found guilty of Reckless Driving under § 46.2-852 the Commonwealth must show that the defendant was (1) driving a vehicle (2) on any highway (3) recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person.
- Driving a vehicle: The commonwealth has to prove that you were actually driving the vehicle. While this may seem straightforward there are occasions where this may be difficult to prove. This is especially true where the defendant was involved in a single vehicle accident and there were no other witnesses.
- Highway: This requirement may be confusing to many people because the definition of highway under this part of the code is different than the common usage of the word. Under 46.2-100, a highway is defined as the “entire width between the boundary lines of every way or place open to the use of the public for purposes of vehicular travel,” essentially a public road. Furthermore case law in Virginia holds that a highway may be determined by “the degree to which the way is open to public use for vehicular traffic.” Furman v. Call, 234 Va. 437, 439, 362 S.E.2d 709, 710 (1987). This can be a complicated issue and if you think this may be an issue in your case, you should certainly talk with a lawyer about it.
- Endangering life, limb, or property: The Commonwealth has to prove this element beyond a reasonable doubt. Oftentimes in these cases the defendant has been charged after an accident where typically the officer was not present to witness what occurred. Based on his training he may attempt to determine how the accident occurred and testify based on this evidence. It is important to note that simply because an accident has occurred does not mean that the defendant was driving recklessly. See Powers v. Commonwealth, 177 S.E.2d 628, 211 Va. 386 (1970). Other evidence that may be used against you in court are your own statements made to the officer (no this is not inadmissible hearsay). In cases where there is a lack of an admission of guilt and it is not clear from the accident what occurred, the defendant may have a strong case.
3.2. Reckless Driving Based on Speed
To be found guilty under § 46.2-852 the Commonwealth must prove beyond a reasonable doubt that the defendant was (1) driving a motor vehicle on the highways in the Commonwealth (2) at a speed of twenty miles per hour or more over the speed limit or in excess of eighty miles per hour regardless of the maximum speed limit.
The main issue in Reckless Driving cases based on speed is actually proving the defendant was exceeding the speed limit as required by statute. This may seem obvious but actually submitting the necessary evidence may be difficult in certain instances. It is important to note that there is no mental element in these cases. Lawyers refer to these crimes as strict liability crimes. The Commonwealth only has to prove the defendant was driving at the requisite speed. The Commonwealth doesn't have to prove the defendant was actually driving recklessly.
3.3. Improper Driving
In many reckless driving cases the main goal is to try and get your charge reduced from reckless driving down to improper driving. Improper driving is a traffic infraction, not a criminal charge, and the consequences are therefore less severe. Improper driving is only 3 demerit points on the defendant's record as opposed to the 6 demerit points assessed in reckless driving cases, for Virginia drivers. Furthermore, it will only stay on your driving record for three years instead of eleven years. Improper driving is reckless driving except that based on the facts of the case the culpability of the defendant is slight. Code § 46.2-869. Law enforcement officers are not allowed to write tickets for improper driving. In some cases either the prosecutor or officer, depending on your jurisdiction, will agree to reduce the charge to improper driving before your trial begins. The judge also has the power to find you guilty of improper driving.
5.4. Driver Improvement Program
The Virginia Code allows a traffic court judge to require a defendant found guilty to attend a driver improvement program. Upon successful completion of the program the conviction may be dismissed or reduced. The defendant may also receive safety points. In some jurisdictions it may make sense to attend driving school prior to your court date.
4. Procedural Issues
4.1. Purpose of Your Court Date
One of the first steps in any reckless driving case is to determine the purpose of the court date written on your summons. There are typically two options. The officer may have written a date that is set for a first appearance, or he may have written a trial date.
It can often be difficult to determine whether the date written on the summons is for a first appearance or a trial date. Sometimes the officer will state to the driver the purpose of the date when handing the driver the ticket. Often, however, drivers have no idea of the purpose of the date. Typically, if the date is only one or two weeks away from the date the ticket was given, this is a first appearance time. If it is set out a month or more, the date will often be a trial date. To be sure either contact a traffic attorney in the area you received the ticket, or contact the clerk's office in the county or city your case is to be held.
4.2. First Appearances
The purpose of the first appearance is advise the defendant of his/her right to counsel and then to set a trial date. This is typically done because the Commonwealth's Attorney is not waiving jail time as a policy matter. This does not mean that if you are convicted you will receive jail time, but there is a more realistic possibility of at least some suspended jail time as a result of a conviction.
When you are advised of your right to counsel the judge will ask you whether you want to hire an attorney or whether you would like to see if you qualify for a court appointed attorney based on indigency. If you elect to try to obtain court appointed counsel the judge will have you fill out a form regarding your financial background to determine whether you qualify. If you qualify he will either appoint the public defender in your jurisdiction (if there is one) or a lawyer from the court appointed list.
4.3. Whether You Have to Come to Court
In some cases out of state drivers need to appear in court for your reckless driving case. First, you should look at your summons. A little below the middle of the summons there will be a line stating that if this box is checked you don't have to come to court. Even if this box is checked it is still a good idea to talk to a traffic attorney in your area that handles these cases. Because Reckless Driving is a criminal charge, if you fail to appear the Judge could enter a capias, which is a warrant for your arrest. Whether or not you have to come to court will ultimately be determined by the policy that the judge in your case has.
4.4. Court Personnel
There are a number of different parties involved in any criminal case, including reckless driving cases. There will, of course, be a judge. While not required, many defendants will have obtained a defense attorney. The clerk's office is in charge of the administrative aspects of the court, including processing payment of fines and court costs.
Whether the prosecutor will be involved in your case will vary depending on the local Commonwealth Attorney's policies, and your speed or the seriousness of the driving behavior and harm to any victim in your case.
4.5. Your Trial in the General District Court
When your case is called the judge will tell you what your charge is and then will ask what your plea to that charge is. You can tell the judge you are either: 1) pleading not guilty, 2) pleading guilty, 3) pleading no contest, or 4) you don't have to enter any plea at all (which operates as a not guilty plea).
If you plead not guilty, the court will then hear evidence in your case. The judge will ask the officer what occurred. You will then have the opportunity to ask the officer questions. After the officer testifies you will then have the chance to tell the judge what happened if you would like, although you are not required to.
After the Judge hears all of the evidence he will make his ruling regarding guilt or innocence, and will also make his ruling regarding what punishment the driver will receive if found guilty.
4.6. Payment of fines and court costs
The driver has 30 days by statute to pay any fines and court costs incurred as a result of a conviction. These costs are paid at the clerks' office in the General District Court, which is located right outside the courtroom. You may pay directly after court if you would like. Alternatively, you may ask the clerks about setting up a payment plan.
4.7. Logistics of license suspensions
For VA drivers if your license is suspended for 30 days or less the clerks will keep your license in their office. If suspended for longer than 30 days you will have to go down to the DMV to pick up your license. The court is not allowed to take an out of state driver's license, but may still suspend an out state driver's privilege to drive in VA.
4.8. Reporting to jail
If you receive active jail time as a result of your conviction, many judges allow you to delay reporting to jail about 3 weeks, but this can vary from court to court.
After the case is over you have 10 calendar days to file an appeal. You file this appeal in the General District Court. You may do so directly after your case is over by speaking with the clerks. You will fill out a form indicating you would like to appeal, and the clerk will give you a new court date in a new court, the Circuit Court of the jurisdiction where your case is held.
If you appeal your case to the Circuit Court it is important to understand that your first court date is not your trial date, it is a docket call date where you will set the actual trial date. At docket call you will have the option of choosing a jury trial or a bench trial. If you choose to have a jury trial you will have to pay the costs for the jury if convicted.
4.10. Withdrawing Your Appeal
You are allowed to withdraw your appeal. It is not uncommon at docket call for drivers to withdraw their appeal. This will often involve paying additional court costs.
5. Do you need a lawyer for Reckless Driving?
Whether you will ultimately need to hire a lawyer for your case will depend on a number of factors. It is always a good idea to at least discuss your case with a lawyer prior to trial. Reckless driving is a crime, and therefore can have serious lasting consequences. In some jurisdictions, if you fail to appear, the Court will issue a capias, which is a warrant for your arrest. Again, you will need to talk to a traffic attorney in the area where you received your charge to understand the local judge's policy.
In certain jurisdictions if you received a reckless driving ticket based on speed, and your speed was over a specific threshold set by the judge, he will suspend your license for a period of time. In cases where the driver was speeding 90 mph or more, many judges will seriously consider giving the driver jail time.
There are different ways to defend reckless driving cases based on the specific type of charge and how the judge in the locality you received the ticket handles these cases. Because of the variations in the best way to handle these cases, the legal complexities that arise in certain cases, and the serious consequences that could arise based on a conviction it is always advisable to at least consult with a lawyer about your case. A lawyer may be able to appear on your behalf without you ever having to come to court, depending on the local court rules.
Call for a Free Consultation Regarding Your Case Today at 434-979-0308
Each case is different, but depending on the specific set of facts of your case, I may be able to help you: (1) have your charge dismissed, (2) obtain a not guilty verdict, (3) obtain a less serious charge than the original charge, or (4) obtain an agreement with the Commonwealth which will minimize the negative impact a conviction may have. Please call at 434-979-0308 or use the contact form.