Consequences of Reckless Driving Conviction in Virginia
If you are found guilty of Reckless Driving in Virginia, the primary possible penalties are:
- A possible sentence of up to a year behind bars: Reckless driving is a Class 1 criminal misdemeanor which carries 0-12 months in jail.
- The fine can range from $0-$2500
- Your license can be suspended for up to six months on most reckless driving offenses
- A criminal record if convicted: the criminal record is separate and distinct from the driving record
The secondary consequences that come as a result of a Reckless Driving conviction can include:
- An increase in insurance premiums
- Forfiture of Commercial Driver’s License (CDL)
- Loss of government security clearance (as a result of misdemeanor conviction)
- Out of state license suspension: Some clerks and police officers will say that there will be no license suspension if you prepay your ticket. However, a conviction WILL be reported to your out of state DMV, and THEY determine suspension. Some states suspend your license automatically for a conviction of reckless driving.
- Employment consequences: People have tried to hire me AFTER they lost a job due to a reckless driving conviction
- Immigration consequences: if you are not a permanent citizen in the United States, a misdemeanor conviction can have immigration consequences.
What is Reckless Driving under Virginia Law?
Driving at speeds of 20 mph above the posted speed limit or above 80 mph can warrant a reckless driving ticket in Virginia. It is found in the Code of Virginia under:
§ 46.2-862. Exceeding speed limit.
“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.”
Driving in a manner which endangers life, limb or property is also considered reckless driving under the following law:
§ 46.2-852. Reckless driving; general rule.
Irrespective of the maximum speeds permitted by law, any person who drives a 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 shall be guilty of reckless driving.
If you are not in control of your vehicle, even if it is due to your car’s faulty brakes, you can receive a reckless driving ticket as stated here:
§ 46.2-853. Driving vehicle which is not under control; faulty brakes.
A person shall be guilty of reckless driving who drives a vehicle which is not under proper control or which has inadequate or improperly adjusted brakes on any highway in the Commonwealth.
Driving too fast in heavy rain, snow or ice is considered reckless as is driving too fast in traffic:
§ 46.2-861. Driving too fast for highway and traffic conditions.
A person shall be guilty of reckless driving who exceeds a reasonable speed under the circumstances and traffic conditions existing at the time, regardless of any posted speed limit.A less common reckless driving charge is driving with an obstructed view:
§ 46.2-855. Driving with driver’s view obstructed or control impaired.
A person shall be guilty of reckless driving 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.
What are possible defenses to reckless driving charges?
Mistakes by the Police Officer (Technicalities)
Errors on the Ticket/Wrong Offense Date on Ticket
Tickets have been dismissed due to errors in the content of the summons. Errors, such as a misspelled name do not get a charge dismissed. However, a wrong offense date on the ticket can result in a dismissal. Additionally, Officers sometimes write down the wrong code section or description and that will result in a dismissal if the charge is not brought correctly. During a trial, an officer is required to testify the time in which he witnessed reckless driving taking place. As a result, if a defendant is able to prove that he/she was not present in the specified area during the time/place listed on the citation, the judge can dismiss the case.
Virginia law requires that the speed measuring device used to determine the speed must be calibrated WITHIN SIX MONTHS of the offense date. Police officers will sometimes fail to have their radar calibrated every 6 months, or have a certificate that complies with the law. Police officers, deputies and troopers are required to have their radar calibration certificate at trial. If their calibration certificate was over 6 months old when they wrote your ticket, your charge can be dismissed. There are other technical requirements as well for the certificate, and it is important that any attorney you hire is prepared for the possibility that the certificate may not comply with the requirements of the law in order to take advantage.
The officer must present their certificate of calibration if inquired by a defense attorney. The certificate also must be an ORIGINAL or a true copy (certified copy). Some attorneys do not know how to successfully argue this defense. The Code of Virginia states as follows:
§ 46.2-882. Determining speed with various devices; certificate as to accuracy of device; arrest without warrant.
“…In any court or legal proceeding in which any question arises about the calibration or accuracy of any laser speed determination device, radar, or microcomputer device as described in this section used to determine the speed of any motor vehicle, a certificate, or a true copy thereof, showing the calibration or accuracy of (i) the speedometer of any vehicle, (ii) any tuning fork employed in calibrating or testing the radar or other speed determination device or (iii) any other method employed in calibrating or testing any laser speed determination device, and when and by whom the calibration was made, shall be admissible as evidence of the facts therein stated. No calibration or testing of such device shall be valid for longer than six months…”
Therefore, if I ask the officer to present proof of his radar’s calibration and the officer:
- Doesn’t have it
- Has an expired Certificate of Calibration
- Has only a photocopy and not a true copy
the judge must dismiss the ticket under the Code of Virginia. I have successfully argued this defense in court and had charges dismissed with no fine or court costs. I have even had law enforcement, and prosecutors, incorrectly believe the certificate only needed to be updated once a year. They were unpleasantly surprised at trial.
Often times a driver will claim, “I wasn’t going that fast” and, to their knowledge, they were not. This is due to an inaccurate speedometer reading. If my client believes they were not travelling the speed they were ticketed, I may recommend getting their speedometer calibrated. Speedometers can be inaccurate for a number of reasons:
- Larger or smaller aftermarket wheels/tires
- A new differential/transmission
- Low or high tire pressure
- Faulty, Damaged or Aged Components
Many auto shops will have the equipment required to calibrate a speedometer. Once calibrated, they will give you a certificate displaying how inaccurate your vehicle’s speedometer was before calibration. The certificates should contain a table comparing your vehicle’s speedometer reading against a true and accurate speedometer:
If the certificate shows that your vehicle’s speedometer reads a number lower than the vehicle is actually traveling (see chart), it can positively affect your case. For some judges, the calibration can be the most important mitigating factor.
Other Arguments During Trial
Many defenses can present themselves before or during trial when defending a reckless driving case. Often times, it will require careful preparation as well as informed presentation to the judge. There have been many circumstances where a defense is not present until trial after both sides testify. Officers have said something that I am able to question him on, thereby backing him into a corner. Sometimes I can argue that my client operated within the legal limits as a result of something the officer said.
During one particular trial, I won a case where the officer pulled over my client, who was following another vehicle. The officer admitted he based my client’s speed on the vehicle he was traveling behind. Furthermore, he testified that he never actually clocked my client on radar or LIDAR (laser). As a consequence of the officer’s testimony, my client’s case was completely dismissed.In addition, officers will sometimes leave out important information that results in dismissal. Each law has elements that individually must be proven beyond all reasonable doubt. During many reckless driving accident cases the officer almost never witnesses the actual accident or the client driving. As a result, the officer can only testify to what they actually observed or statements the defendant makes. So if the defendant makes no statements as to the cause of the crash, the officer cannot speculate as to the cause and I can usually get the charge completely dismissed.
Mitigating Facts Which Can Help Your CaseEven if you are technically guilty of reckless driving under the law, I can usually get a charge reduced or dismissed depending on the facts of the case.
Good Driving Record
Having a good driving record with few or no violations is important because the judge will consider the driving record. Judges often reduce a charge for having a good driving record in many cases. Every judge requires a copy of my client’s driving record in order to reduce or dismiss a charge, unless the dismissal is after a trial. Cases where the driving record is not great, or the speed is high make the case more difficult. However, there is still hope for someone with a bad driving record. I have had cases reduced or dismissed with atrocious driving records, they just take more time and preparation and may come after a full trial.
Each case is unique and outcomes vary depending on the facts of each case. Past results do not guarantee or predict future results. If your driving record has a lot of violations, your case will require special attention. I have witnessed on NUMEROUS occasions an unskilled lawyer try to get the defendant’s case reduced with a bad record, only to get their client convicted. My fee for representing a client with a bad driving record is a bit higher due to the extra amount of time spent on the client’s case in order to get a desireable result. I have had some great results in the past due to recommendations before trial when clients followed through. I have also had cases where I put on a full trial for the client because of a terrible driving record and had the cases completely dismissed. It is important that your attorney specializes in traffic work and understands the nuances in the law. I see many excellent criminal defense lawyers who win murder cases and they don’t know anything about traffic law. You also need an attorney who can properly evaluate your case. I see attorneys in court get their clients convicted all the time because they don’t treat the case appropriately. I recently continued my case because the judge always convicts at the speed my client was cited for and another lawyer didn’t continue their case and got their client convicted. Maybe they didn’t want to go back to court, or maybe they didn’t know the judge, but either way their client got convicted and mine got reduced at a later date.
Community Service and Driving School
In cases in which the speed is high enough to where my client is as risk for jail time, it may be advisable to recommend that he/she complete community service. There are very particular rules on what qualifies for community service, and what level of proof is required to satisfy the requirements. I see other attorneys get in trouble all the time because they don’t know these particular rules and they improperly advise their clients. Then their client suffers from the bad advice in court because the judge will not reduce the charge. It is crucial to understand your particular judge’s policy as well as what their threshold is for requiring community service. Some judges may put people in jail at 90 mph and up. Others may do it at 100 mph. I have had a client avoid jail at 123 mph, and I have had a case reduced at 100 mph and dismissed at 97 mph in a jurisdiction where jail time is the norm at 97. Every case truly is unique. What is important is that your attorney know what to expect, and how to proceed with your case so that you have the best chance possible to get the best outcome possible on any given day.
Policies regarding driving school are different between judges as well as the court you are in. Some judges do driving school for a reduction or dismissal whereas others will not since it adds more time and work to their clerk’s office. The result of completing driving school (dismissed or reduced charge) usually depends on the driving record, the judge, and the severity of the speed. When driving school is ordered, my client’s case is often continued for two or three months during which the driving school must be completed and submitted to the court. In cases of very high speeds speeds (over 90 mph), I may advise my client to complete driving school before trial in order to put their case in a better light during trial. Some judges will view this as being proactive and others may see it as presumptuous. Therefore, it is important to know your particular judge. Since I specialize in traffic law I am in traffic court 4-5 days per week and I know all of the regular judges where I practice AND all of the substitute judges. In one high volume traffic jurisdiction recently I was tipped off that a judge who convicts everyone at pretty much every speed was going to sit the next day. Rather that have my clients convicted I continued the cases to another day and my clients were spared. All of the other lawyers who did not do that had their clients convicted. There were literally over a dozen lawyers and hundreds of clients convicted because those lawyers did not continue their cases.
If you are a CDL licensed driver, you cannot do driving school in order to get your charge reduced or dismissed. The Code of Virginia specifically exempts CDL drivers from taking driving school as part of a court order. If you have a CDL, it is crucial to hire a Lawyer with experience who will be able to get you the best outcome possible.
The Possible Outcomes of a Reckless Driving Trial
When reckless driving charges are reduced, it means that the ticket is amended (changed) to a lesser offense. Reckless driving can be reduced to a traffic infraction (which gets rid of the misdemeanor and the reckless part of the charge) or a non-moving violation such as defective equipment. These are some of the most common charges a reckless driving violation will get amended to:
- Improper Driving (not a misdemeanor, moving violation)
- Speeding Ticket (not a misdemeanor, moving violation)
- Defective Equipment (non-moving violation that has no points in Virginia)
- Defective Speedometer (non-moving violation that has no points in Virginia)
A reckless driving charge often gets reduced as a result of a good driving record, driving school, successful negotiation with the Commonwealth Attorney (prosecutor) and/or community service.
The most desirable outcome of a Reckless Driving trial is a dismissal. Although dismissals will occasionally occur, they are not the norm. In most cases, a dismissal will happen as a result of driving school or a successful legal argument (technicalities, etc.). If I do not believe the Commonwealth (prosecutor and/or officer) can prove their case against you, I will submit a plea of Not Guilty and try the case. I have been very successful when trying cases due to radar calibration issues. Many firms advertise they try for a dismissal for every charge, but in reality, I have never seen them actually try a case. They will often hire low-level associates who have little to no experience trying cases. These associates can lack the trial experience to competently and intelligently try a reckless driving case. These firms will often ask for a dismissal with driving school, but that is not the same as pleading Not Guilty and trying the case.
If a reckless driving charge is dismissed completely it will not show up on the driving record if the dismissal is due to a legal argument and there is no fine or court costs. If the dismissal is due to driving school, there will be court costs involved. The completion of a court required driving school will sometimes appear on a driving record; however, the reckless driving will not and no points are associated.
Convictions will happen in some events. You may have been ticketed for a very high speed. You may have paid a low-price attorney who did not perform a satisfactory job. There are many lawyers who do not practice law in traffic court regularly and may not have done everything necessary to get a good outcome. Regardless of the competence of the attorney handling your case, there are some cases where the speed is just too high, there is no legal defense, and the judge will convict as a consequence.
It is very important to note that prepaying your case is pleading guilty!
If convicted of reckless driving, or any charge, you have only TEN (calendar) days to appeal your case to circuit court from the date of the conviction. After that you lose your right to appeal. You also have sixty days to file a discretionary (up to the judge, and for good cause shown) motion to reopen in general district court from the conviction date. Importantly, the court only has jurisdiction to actually hear the case within sixty days. I recently saw a lawyer file the motion to reopen within sixty days, but the lawyer did not ensure the hearing on whether or not to grant the motion to reopen took place within sixty days. As such, the court denied the motion because the court lacked authority to reopen the matter.
I have obtained several great results with a new judge that had a policy of convicting every person driving 25 mph or more over the limit. I had two clients driving over that threshold. Instead of admitting guilt and getting my client convicted, I entered a plea of Not Guilty and I tried the cases. At the conclusion of trial, I won both cases because the officer did not have his calibration certificate in court. The judge has since changed his policy and his threshold is now 30-35 mph over the limit. Attorneys owe a duty to their clients and if I see a judge doing something that I consider unreasonable I am not going to just go along with it without doing everything possible to help my client get the best outcome possible.
Why Hire a Lawyer For a Reckless Driving Ticket?
There is a popular saying, “The person who represents himself/herself has a fool for a client.” If you are charged with Reckless Driving in Virginia, it is very important to hire the right attorney to fight your misdemeanor charge on your behalf. I can usually try the case in your absence depending on the speed and jurisdiction.
Familiarity with the Courts and Judges
Having a professional relationship with the judges and knowing the various courts’ policies can improve the chances of a good outcome in a reckless driving case. It is important to know how the judge responds to certain variables in a case. Every judge has different policies, thresholds, and philosophies on the law; it is important to be familiar with his/her procedures in a reckless driving case. Some judges give preferential treatment for people with military service, others don’t. Some like driving school, some don’t. Some give better results with the client present, some don’t. Some judges want a longer driving history, some are happy with a shorter record. Every judge is different and every case is different. I will honestly advise potential clients fully about their case and what I think I can do based on the speed and the facts.
I watch defendants represent themselves in court all the time and while there are small minority of pro se (without representation) defendants who do well, the vast majority conduct themselves in a way that makes their case worse. I watch pro se defendants ignore possible legal defenses or present their case in a way that hurts their case or makes the judge angry on a daily basis. And it has a tangible effect on the outcome of the case. There is a lot of bad information on the internet, and unless you know Virginia traffic law, and your particular court then you are at a big disadvantage.
The most important reason to hire a lawyer is their knowledge of the law and all the possible defenses. Hiring a knowledgeable attorney with expertise in traffic law and criminal procedure in Virginia can be your best chance at a favorable outcome in your case. You want to hire someone who is very familiar with the particular judge you will have, who knows whether the prosecutor will get involved, knows how the court procedure works, and most importantly what realistic outcomes you face.
Avoid a Court Appearance or Get Convicted in Your Absence
Many of my clients are out of state drivers who are just passing through Virginia. It would be a major inconvenience for them to travel back to Virginia to attend their court hearing. As a result, many of those who are accused of reckless driving simply prepay their ticket, which is an admission of guilt. The law in Virginia actually says reckless driving is not a prepayable offense, but some courts are allowing it. To avoid traveling to court or being convicted in your absence, you may be able to hire an attorney to appear on your behalf (depending on the charge and jurisdiction). Many people get very nervous about court. It can be intimidating to stand in front of a judge that you’ve never met before and in a courtroom full of people.
If you ignore your reckless driving charge you will be convicted in your absence. As a result you will have a permanent criminal record for the rest of your life. The consequences of reckless driving are such that if it is possible to avoid a conviction you should at all costs. I get too many phone calls from people who experience consequences of reckless driving four or five years down the road and at that point it is too late.
by Daniel Leavitt
Attorney at Law