2.9 Post-trial Considerations

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2020 Ed.)

2.9 POST-TRIAL CONSIDERATIONS

2.901 Effect of Conviction on Other Charges. If a defendant who pleads guilty to a violation of section 18.2-266 (DUI), 18.2-266.1 (underage alcohol consumption and driving), 18.2-272(B) (driving under the

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influence with a revoked or restricted license), or a similar ordinance is also charged with refusal based on the same set of facts, the court may dismiss the warrant or summons charging him or her with refusal. ²³⁵ Similarly, when a driver who is charged with both DUI and reckless driving under section 46.2-852 arising from the same events is convicted of one of these charges, the court must dismiss the remaining charge. ²³⁶

In some jurisdictions, it is the practice of the court at the conclusion of a DUI trial to find a defendant guilty of reckless driving instead of DUI, with a condition that the defendant complete an alcohol safety action program (ASAP). This kind of amendment is appropriate if done with the consent of the defendant or his or her counsel. But if the amendment is done sua sponte by the court and without the concurrence of the defendant, it is an unlawful amendment of the DUI charge because reckless driving is not a lesserincluded offense of DUI. Therefore, the court's amendment to reckless driving serves as an acquittal of the DUI charge. ²³⁷ In this situation, counsel may appeal the reckless driving conviction to circuit court and file a motion to dismiss on the grounds that the amendment was unlawful and the underlying DUI has been dismissed and cannot be retried. ²³⁸

Pleading guilty to a charge of improper driving allows a court to dismiss a reckless driving charge, make a finding of lesser culpability, and impose a three-point traffic infraction with a maximum penalty of $500. ²³⁹ The Commonwealth has the burden of proving improper...