There are many convicted Virginians who now wish they had known. Virginia has defined Reckless Driving for us in not one, not two, but in 14 different ways! I am a traffic/criminal defense lawyer, and even I cannot recount them from memory. Reckless Driving by Speed is only one of them--this charge is defined as driving on the roads of Virginia at 20 miles per hour or more above the speed limit OR in excess of 80 miles per hour regardless of the posted speed limit. Here is a surprising truth: Reckless Driving in Virginia, even by speed, is not a traffic infraction--it is a Class 1 Misdemeanor, the highest class of Misdemeanor in Virginia, just below the Class 6 Felony. More surprising truth: If you are convicted of Reckless Driving in Virginia, you will have a criminal record (not a bad DMV record--a criminal record) for the rest of your life. So, if you are found guilty and then later asked on an application or a lease for example if you have ever been convicted of a crime--your answer will have to be "yes." Speeding can be a crime in Virginia. Other forms of Reckless Driving in Virginia are (1) General Reckless Driving (driving in such a manner to endanger life, limb or property), (2) Driving Out of Control; Faulty Brakes, (3) Passing on a Grade or a Curve in the Road, (4) Driving with the Driver's View Obstructed, (5) Passing Two Vehicles Abreast, (6) Driving Two Abreast in a Single Lane, (7) Passing at a Railroad Crossing, (8) Passing a Stopped School Bus, (9) Failing to Give Proper Signals, (10) Driving Too Fast (regardless of any posted speed limit), (11) Failure to Yield the Right of Way, (12) Reckless Driving in Parking Lots, Etc., and (13) Racing.
What is the Worst Case Scenario at My Trial?
A Class 1 Misdemeanor in Virginia carries up to 1 year in jail and/or a fine of up to $2,500 plus Court costs. Jail time is a possibility, particularly at higher speeds. Remember a Class 1 Misdemeanor is the most serious Misdemeanor in the Commonwealth. It carries the same range of penalties as does larceny (stealing), assault and battery, possession of illegal drugs, and Driving Under the Influence (DUI) for example. The Court can also impose a suspension of your license from 60 days to 6 months for Reckless Driving by Speed. The Court is not required to suspend your license, but it can do so, and if it does, 60 days is the minimum time. If your license is suspended, you may be allowed to maintain a "restricted license" in order to get to work and take care of very limited specific responsibilities. In cases of Reckless by Racing, the Court is required to suspend the license for a minimum of 6 months and a maximum of 2 years. Page 2 of 7 Many of my clients who have been forced to endure a restricted license tell me that it is worse than jail time! In our fast-paced and mobile society, a restricted license will severely limit your options and your liberty. With a restricted license, you are not even allowed to drive to the grocery store! One may have to use public transportation if it is available. Some would have rather have been heavily fined or had jail time imposed!
Can I Really be Sent to Jail for Speeding in Virginia?
Surprising Truth: Yes. Unfortunately this happens regularly in the Commonwealth, particularly for speeds above 90 miles per hour or particularly bad accidents involving damage caused by reckless driving. As a Class 1 Misdemeanor, the maximum jail time a Court can impose for Reckless Driving is up to 1 year in the local jail. It is important to note that there is no "traffic jail." If one is found guilty of Reckless Driving and is sentenced to jail time, the sentence is imposed at the same jail in which all types of criminals serve their time, even felons awaiting transfer to prison. The "speeder" or reckless driver will serve in the jail's general population with everyone else. This can be very disconcerting, even terrifying, to one completely unfamiliar with incarceration. One possible exception to this is those individuals the Court allows to do their time on the weekends; usually the "weekenders" are kept in a separate area in most of our local jails, but as the placement of inmates is controlled by jail administration, and not the Courts, there is no guarantee of this segregation. Those convicted of Reckless Driving and given jail time go through the same processes as one convicted of any crime in Virginia: he or she is "processed" in a room with concrete benches sitting beside criminals. You are now in "inmate," and really have very little control over your life until you have done your time. After you are printed, photographed, and carefully searched, you are given your orange jump suit and flip flops and put into a about a 6 by 8 foot concrete room with a sink and an open toilet and bunk beds with 1/2 inch mattresses--and no pillows. Even if you have a cell mate, the isolation can itself be unnerving. There is no TV, no magazines, no internet, no phone. You leave that cell only when you are allowed and are "locked down" the rest of the time. We have dedicated our law practice to helping you avoid this unpleasant experience.
Why Not Just Pay the Ticket?
The fact that you are reading this report tells me that you haven't fallen into the mindset of "I don't have time or money to fight this; I'll just pay the fine." This is probably exactly what the Commonwealth and the prosecutor wants you to think. What you have to realize is another surprising truth: you are not convicted today, and a criminal conviction is hardly a foregone conclusion. And, because of the possibility of jail time, you are generally required to appear in Court for a charge of Reckless Driving in the Commonwealth. If you do not show up for Court and just call the Clerk to pay a fine, you are taking a monumental risk. Remember the Clerks are not lawyers or Judges. They are highly trained Page 3 of 7 professionals in whom we place a lot of trust surely. However, they cannot give you legal advice. They may tell you what they think, but beware if the possibility of jail time exists. For example, the Clerk may not know yet that there will be an unfamiliar substitute Judge in the Court on your Court date. That Judge could find that, in your case, he or she would have imposed jail time or a larger fine. And now you are not present to object or to request time to hire a lawyer to fight this decision. You will likely not even know that there is now a Capias (an arrest warrant) issued in your name. At some later date, perhaps when you are stopped for simple speeding or a cracked tail light, you will likely be placed in cuffs and taken to jail right then and there. You may wait days in jail to be heard by the Court, unless you get ahold of your lawyer quickly, your car may be towed and impounded, and you will suffer the embarrassment of this unexpected arrest. People in this situation, particularly those who live out of state, can wait in jail for days or weeks for the privilege of coming to Virginia to serve a 2-day jail sentence. Better to appear with Counsel.
I'm Smart and/or Educated--I Think I Can Represent Myself.
Will Rogers said, "There is nothing so stupid as an educated man, if you get him off the thing he was educated in." If you are not trained to be a lawyer, best to leave this to the professionals. If you need surgery, hire a good doctor. While you can work through an appendectomy with some advice from the internet and a good YouTube video, this is hardly advisable--and it hurts. Even smart lawyers hire lawyers outside their area of specialization when they are in need, because they know the wisdom attributed to Abraham Lincoln: "He who represents himself has a fool for a client." When you are trying to defend yourself, logic and objectivity are nearly impossible. You can make things worse. Remember you will be tried in the same Courts that are trying accused murders. Judges are usually highly trained and experienced; they run their courtrooms efficiently and based on established Rules of Evidence and traditional procedures and decorum, which means you should not waste the Court's time, you have to know what you can say, and you have to know when you can say it--or you can hurt your case, probably fatally. Most who "try" their own criminal cases take their lumps in Court and end up calling an attorney for their appeal, or they end up in jail-- sadly, and probably unnecessarily.
Is it Even Possible to Get This Criminal Charge Reduced or Dismissed?
Surprising truth: yes. In reckless by speed cases, if the charge is not dismissed, the client's next best result is to have the charge reduced to Improper Driving or to simple speeding. Improper Driving is a good result also for other types of Reckless Driving if the Commonwealth can establish a decent case. If the Commonwealth cannot establish their case beyond a reasonable doubt, the Judge should find the defendant not guilty. If the evidence can be presented to show the defendant's culpability is slight, either the prosecutor or the Judge can find the defendant not guilty of Reckless Driving, a 6 point Class 1 Misdemeanor, but instead find Page 4 of 7 him or her guilty of Improper Driving, a 3 point traffic infraction, like a mid-grade speeding ticket, that falls off of your DMV record in three years. Contrary to what one might think, there is quite a bit of evidence that can be used in your defense. You and your Counsel must show up ready to try the case. In speed-related cases, any radar equipment must be calibrated on a regular basis. If the officer did not or cannot produce evidence of this calibration, the charge should be dismissed. Your DMV record can be used in your favor; often out-of-state DMV records are easier to use in Court here in Virginia simply because those records are not easily understood by the officers and Courts, and often the officers will not secure these out-of-state records prior to Court. A Calibration Certificate can be invaluable to your case, if it is helpful and produced correctly by an operator your lawyer trusts. Attending a Driver Improvement School before your trial date is extremely helpful to your chances, particularly at higher speeds. Often, we will recommend targeted community service prior to appearing at your trial to practically display to the Judge your commitment to taking responsibility and to "paying some dues." There is other evidence that might be used in your favor, depending on the facts of your case. Even expert testimony might be used as indicated by the facts your case and your particular desired outcome.
How does the DMV Handle a Reckless Driving Charge (and hence my Insurance Company!)?
If you avoid license suspension from the Court, the DMV can administratively suspend your license itself, given certain circumstances. Surprising truth: A conviction of Reckless Driving results in a negative 6 point notation on your DMV record and stays on your record for 11 years--this is the same points and timeframe as DUI, Felony Eluding Police, or Vehicular Manslaughter, for example. (Remember that the DMV record will eventually be cleared, but a conviction of Reckless Driving will never leave your permanent criminal record.) At negative 12 points, you will be put on DMV probation for 6 months. If you receive any further negative points during that probationary period, your license will be suspended for 45 to 90 days, and the DMV can approve a restricted license only in very narrow circumstances. Insurance companies see that the Reckless Driving charge adds 6 negative points on your driver's license, just like a DUI. Some companies penalize Reckless Driving in the same manner as a DUI. Some insurance providers are skeptical and tend to read "Reckless Driving" as a DUI charge reduced to Reckless. Indicators show that a DUI will increase your insurance premiums by as much as 25%, while Reckless Driving comes in at a close second at about 20%. Either increase is steep and likely to remain for at least three years.
I Would Like My Earlier Reckless Driving Charge Removed (Expunged) from My Criminal Record. How do I do that?
Surprising truth: You cannot. I receive calls each month asking some version of this question. Usually it involves a college application, an employment application, a security clearance background check, or an opportunity for promotion. Sometimes these charges are Page 5 of 7 years and years old, dating back to our "youthful indiscretions." Traffic infractions typically fall off your DMV record in three years, even a DUI will in 11 years, but a criminal conviction cannot be removed from your permanent record. Colleges, employers, and the government have access to these public records, and a criminal history can continue to cause you trouble. It is a gift that keeps on taking. If your charge was not dismissed, nolle prossed, or you were found guilty by plea or by trial, this charge will be on your personal record for the rest of your life. Your only option in your attempt to clear you record is to apply for a Governor's pardon.
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