1.2 Serious Traffic Offenses Not Based on Intoxication

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2022 Ed.)

1.2 SERIOUS TRAFFIC OFFENSES NOT BASED ON INTOXICATION

1.201 Reckless Driving Generally.

A. The Statute.

The basic offense of reckless driving is contained in Virginia Code section 46.2-852. Reckless driving is committed by a 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" regardless of the posted speed limit. ¹⁷ The term "reckless," as used in the statute, indicates "a disregard by the driver of a motor vehicle for the consequences of his act and an indifference to the safety of life, limb or property." ¹⁸ The burden is on the Commonwealth to prove that the driver operated the vehicle in a reckless manner, and the mere fact that an accident occurred does not give rise to an inference of reckless driving. ¹⁹ The time of the accident, the manner of driving, the road conditions, the weather, any traffic controls, or other circumstances that tend to show a violation has occurred must be affirmatively proved to establish a prima facie case. According to the Virginia Court of Appeals, "[r]eckless driving is not a status offense, and defendant cannot be convicted upon 'speculation and conjecture as to what caused [him] to lose control of the car.'" ²⁰

Because reckless driving is not a status offense, the mere fact that a driver is intoxicated or drinking alcohol does not make the driving reckless. ²¹ But evidence of intoxication could be a factor for the court to consider during a reckless driving trial. ²² Any driver who is charged with and convicted of reckless driving will be guilty of a Class 1 misdemeanor. ²³ If the driver who commits one of the prohibited acts is also (i) driving with a license that has been suspended or revoked because of a moving violation, and (ii) causes the death of another as a direct result of the reckless operation of the vehicle, the penalty is enhanced to a Class 6 felony. ²⁴ But the court may reduce a charge for reckless driving to improper driving—an infraction—if it finds that the person charged with reckless driving had only a slight degree of culpability. ²⁵ Improper driving is further discussed below. The prosecutor also has the discretion to reduce the charge before trial. A police officer cannot charge improper driving; instead, improper driving is a type of discretionary reduction of a reckless driving charge. The Virginia Supreme Court has held that what distinguishes "a speeding violation from the misdemeanor of reckless driving, and the misdemeanor from the felony of involuntary manslaughter, is the likelihood of injury to other users of the highways." ²⁶

A conviction for a reckless driving offense authorizes the court to suspend the defendant's license for a minimum of 10 days up to a maximum of six months, in addition to imposing any other penalties for the more serious forms of reckless driving. ²⁷ The court also has the discretion to issue a restricted permit during this license suspension for any of the purposes enumerated in Virginia Code section 18.2-271.1(E), but not to a defendant who has a commercial license. ²⁸ If the facts indicate that drugs or alcohol contributed to the defendant's behavior, the court may also order enrollment and successful completion of an alcohol safety action program (ASAP); if this is required, the Department of Motor Vehicles (DMV) cannot reinstate the defendant's license until ASAP certifies enrollment. ²⁹ When a reckless driving case involves the admissibility of a preliminary breath test (PBT), the PBT results should only come into evidence when accompanied by proof that the results of the driver's PBT were evidence of reckless driving. ³⁰

A conviction for reckless driving that includes the driver's use of a handheld communications device in violation of Virginia Code section 46.2-818.2 now carries a mandatory minimum fine of $250. ³¹

By statute, one cannot be convicted of the main form of reckless driving, set forth in Virginia Code section 46.2-852 and driving under the influence of alcohol when the two charges arise out of the same act. ³² In at least one case, a defendant charged with a fourth or subsequent DUI offense and reckless driving pled guilty to the reckless driving charge in the general district court; when prosecuted for the DUI in the circuit court, the defense successfully argued that the reckless driving conviction precluded prosecution for the more serious DUI charge. ³³

Reckless driving is legally distinguishable from simple negligence. Simple negligence is the "split-second, momentary failure to keep a lookout," while reckless driving is a "'lengthy, total, and complete' failure to keep a lookout." ³⁴

B. Derivative Offenses.

1. Improper Driving.

Improper driving is simply where a defendant is charged with reckless driving, and the judge finds that the defendant's culpability is "slight." ³⁵ The distinction is critical; reckless driving is a Class 1 misdemeanor, whereas improper driving is a mere traffic infraction punishable by a fine of up to $500.

Improper driving is not a lesser included offense of reckless driving. The element of "slight culpability" is the distinguishing factor. As a result, the power to reduce a charge from reckless driving to improper driving rests with either the trial judge or the prosecutor before the verdict. A jury cannot find a defendant charged with reckless driving guilty of improper driving. ³⁶

2. Improper Control or Faulty Brakes.

Section 46.2-853 of the Virginia Code states that a driver who operates on any highway in the commonwealth a vehicle that is not under proper control or has inadequate or improperly adjusted brakes has committed the offense of reckless driving. Many cases address the issue of proper control. "Proper" means that which is necessary for the driver to maintain control. The cases also indicate that a driver's awareness of a defect in the vehicle that contributes to an inability to keep the car under proper control could also provide the evidentiary basis for a finding of reckless driving. ³⁷

3. Passing When View Is Obstructed.

A driver who overtakes and passes another vehicle proceeding in the same direction without first having a clear view because both cars are approaching the crest of a grade or a curve in the highway may also be guilty of reckless driving. ³⁸ The statute naturally does not apply when there is more than one lane of travel in the direction in which the pass is made.

4. Car Overloaded.

Reckless driving may also be charged when a car is so overloaded or when there are so many passengers in the front seat that the driver's ability to operate the vehicle is compromised. ³⁹

5. Passing Two Vehicles Abreast.

It is also reckless driving if a driver passes or attempts to pass "two other vehicles abreast" that are traveling 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. ⁴⁰ The statute exempts the act of passing two other vehicles when one or both of the other vehicles is a bicycle, electric personal assistive mobility device, electric power-assisted bicycle, or moped. Conversely, a bicycle, electric personal assistive mobility device, electric power-assisted bicycle, or moped is also permitted to pass two other vehicles.

6. Two Vehicles in One Lane.

It is reckless driving for a person to drive a motor vehicle so as to be abreast of another vehicle in a lane designed for one vehicle. ⁴¹ However, two-wheeled motorcycles are permitted to travel abreast in a lane otherwise designed for one vehicle. ⁴² The statute does not apply to valid parades, motorcades, and escorts, nor does it apply to drivers who drive alongside bicycles, electric personal mobility devices, electric power-assisted bicycles, or mopeds driving at speeds of less than 35 miles per hour, ⁴³ or any driver who lawfully passes one or more vehicles traveling in the same direction in a different lane.

7. Passing at an Intersection or Railroad Grade Crossing.

A driver who overtakes or passes another vehicle proceeding in the same direction at any intersection of highways or at any railroad grade crossing may be guilty of reckless driving. ⁴⁴ The statute does not apply to highways with two or more lanes for that direction of travel or to intersections that are designated as passing zones. It also does not apply to one-way streets where there would be no traffic approaching from the opposite direction. Drivers are also forbidden to pass at an intersection while pedestrians are crossing or about to cross in front of either vehicle, unless this is permitted by a traffic light or a law enforcement officer.

8. Passing a Stopped School Bus.

A driver who fails to stop when approaching a school bus that is taking on or discharging passengers and fails to remain stopped until all persons are clear of the road and the bus has started to move again may be guilty of reckless driving. ⁴⁵ The statute acknowledges that school buses also carry passengers other than children, including the elderly and the mentally or physically handicapped. A full stop is required when the bus is stopped for any passenger to board or exit; however, drivers do not have to stop if the school bus is on a portion of the road that is separated from their lane of travel by a physical barrier or an unpaved area. An exception also applies when a bus is immediately adjacent to a school and the driver is directed to pass the bus.

Virginia Code section 46.2-1090 describes the requirements a vehicle must meet to qualify as a school bus. Only buses that are painted yellow and equipped with the required lettering and warning devices subject the driver to the requirement to stop. It is prima facie proof that the vehicle was a school bus if the bus driver, the supervisor of school buses, or a police officer testifies that the vehicle was yellow, conspicuously marked as a school bus, and equipped with warning devices...