Reckless Driving in VA
Q# I was only speeding but the officer wrote me up for reckless driving. What gives?
A. In Virginia speeding in excess of 20 mph over the limit or over 80 mph is statutory reckless driving.
Q# Will this show as a reckless driving conviction or a speeding ticket?
A# If you are convicted as charged your driving record will show a conviction for reckless driving.
Q# What are the penalties for reckless driving by speed?
A# The maximum statutory penalty is twelve months in jail, six months suspension of your Virginia driver’s license or six months suspension of your privilege to operate a motor vehicle in Virginia if you are licensed elsewhere, plus a fine of up to $2,500. If your privilege to operate a motor vehicle in Virginia is suspended for any period of time, Virginia DMV will report the suspension to the state that issued your driver’s license. Most states honor suspensions from other states and will suspend licenses of their own citizens upon notification of an out of state suspension.
The actual penalty which you can realistically expect varies considerably by jurisdiction. In some counties the traffic court judges will begin to incarcerate at 90 mph; at speeds in excess of 100 mph incarceration is a virtual certainly in most jurisdictions.
Some jurisdictions will suspend driver’s licenses (or the privilege to drive in Virginia for those licensed elsewhere) at speeds of 85 mph. At 90 mph or greater such a suspension is quite likely.
Q# Can reckless by speed cases be reduced or dismissed?
A. Some jurisdictions will permit those charged with reckless by speed to attend a driver improvement program and dismiss the charge upon successful completion. Some will not. Those that do generally have a cut-off speed for eligibility for this kind of leniency.
Prosecutors and judges in some jurisdictions will agree to reduce the charged speed on the ticket so that the conviction will be reported as a simple speeding ticket and not reckless driving. Others won’t.
Your ability to get some kind of leniency in these cases depends upon the policies in the jurisdiction where you’re charged and your prior driving record.
If you are licensed in Virginia, the police officer will likely have a copy of your Virginia DMV driving record with him in court. If you are licensed elsewhere you should obtain a copy of your driving record from the state that issued your drivers license and bring it to court or give it to your attorney.
If you think that speedometer error may have contributed to the offense, then you should have your speedometer calibrated. Make sure the shop gives you a certificate of calibration that includes a chart of “indicated speed” versus “actual speed” at various speeds, usually shown in 10 mph increments. The calibration certificate should also show the speed indicated on your speedometer when your vehicle was traveling at the speed charged on the ticket.
For a list of places that will provide a proper certificate of calibration, please click here.
Q. I’m from out of state. Do I have to show up for court in Virginia if I’m charged with reckless driving by speed?
A# Reckless driving in Virginia is a class one misdemeanor. You are legally required to appear in court. Having said that, as a practical matter, out of state drivers routinely hire local attorneys to appear for them and rarely get in trouble for not showing up in person. Most of the courts in the areas where I practice will not mind if you don’t show up if you’re represented by an attorney and there is no realistic threat of incarceration. At speeds of 90 mph and higher, or if you are accused of going 30 mph or more in excess of the posted limit, you should consult with an attorney about the practical necessity of appearing. Some judges will issue a capias, or bench warrant, for your arrest if you don’t show up for a serious reckless driving case. If you are pulled over again in Virginia this could result in your incarceration without bail until the issue of your nonappearance is resolved.
Q. Is there any legally acceptable excuse for speeding?
A. Technically, no. As a practical matter, a court may accept an excuse of medical necessity. For example, if, upon being pulled over by the police officer you immediately demanded medical attention for yourself or a passenger and asked the officer to call an ambulance and there was indeed a genuine medical emergency, this may be accepted by a judge as a defense. Having to go to the bathroom really, really bad is generally not accepted as a medical necessity defense.
The following excuses are routinely heard in traffic court and routinely rejected by traffic court judges:
“I was passing a tractor-trailer.”
“I was just driving with the flow of traffic.”
“I was driving someone else’s car that I wasn’t accustomed to.”
“I had the cruise control set at a lower speed than what I’m charged with.”
And, of course, “I just didn’t realize I was speeding.”
Q# I know I wasn’t going as fast as I’m accused of and the officer clocked the wrong vehicle because I was being passed by faster cars. I’m not a criminal; won’t the judge take my word for it?
A# No. This is a major cause of frustration to many law-abiding people whose only encounter with the criminal justice system is an unfair traffic ticket. When challenged in this manner, the police officer will always testify that he was operating his equipment consistent with his training and experience and that you were the only car in the radar beam at the time he clocked your vehicle. The judge will always believe the officer.
Q# But doesn’t the criminal justice system recognize that even good cops can make honest mistakes?
A. Not really. Even though any sane individual can recognize that any system which relies on human beings is subject to error, the cost of factoring this error into individual cases on the traffic docket is too high for the system to bear. If our hypothetical honest traffic cop makes a mistake only one percent of the time and he writes a dozen speeding tickets per month, then one or two people every year will be unfairly convicted. The trouble is determining which one or two are actually innocent. The police officer will not admit to having made a mistake and clocked the wrong vehicle. After all, if he thought he clocked another vehicle, he wouldn’t have written you the ticket. This situation yields the rather stark choice of either convicting everyone or no one. While it is an old legal maxim that the law prefers to let a hundred guilty men go free than to convict one innocent man, that’s just not how it works in practice.
Q# So why won’t traffic judges believe honest citizens like me?
A# Because traffic judges hear a constant barrage of excuses, the majority of which are laughably ridiculous at best or outright prevarications at worst. The effect of this over time is to numb the judge’s ears to anything the defendant says which contradicts the police officer’s testimony. Moreover, taking a defendant’s word over that of a sworn law enforcement officer is perceived by the law enforcement community as a grave insult and slight to the integrity of that officer. And after all, the judge knows he’ll have to see that same police officer again next month whereas he may never see you again.
Q# Is there no recourse to justice in this situation?
A. Your best bet is to demand a jury trial in Circuit Court. A jury of your peers is far more likely to bring common sense to bear on the situation and actually listen to your side of the story. The trouble is that reckless driving is a Class One Misdemeanor in Virginia with a maximum penalty of twelve months in jail. If the jury doesn’t like you, for whatever reason, they could lock you up. Also jury trials are time consuming and you will incur considerable legal costs, in the thousands of dollars, to be represented at a jury trial even for a simple traffic offense.
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