Traffic Offenses: Your First Case

Transcription

1 74812 Traffic Offenses: Your First Case

2 THIS MATERIAL IS PRESENTED WITH THE UNDERSTANDING THAT THE PUBLISHER AND THE AUTHORS DO NOT RENDER ANY LEGAL, ACCOUNTING OR OTHER PROFESSIONAL SERVICE. IT IS INTENDED FOR USE BY ATTORNEYS LICENSED TO PRACTICE LAW IN VIRGINIA. BECAUSE OF THE RAPIDLY CHANGING NATURE OF THE LAW, INFORMATION CONTAINED IN THIS PUBLICATION MAY BECOME OUTDATED. AS A RESULT, AN ATTORNEY USING THIS MATERIAL MUST ALWAYS RESEARCH ORIGINAL SOURCES OF AUTHORITY AND UPDATE INFORMATION TO ENSURE ACCURACY WHEN DEALING WITH A SPECIFIC CLIENT'S LEGAL MATTERS. IN NO EVENT WILL THE AUTHORS, THE REVIEWERS, OR THE PUBLISHER BE LIABLE FOR ANY DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OF THIS MATERIAL. THE VIEWS EXPRESSED HEREIN ARE NOT NECESSARILY THOSE OF THE VIRGINIA LAW FOUNDATION Virginia Law Foundation. All rights reserved. These materials may be shared only with those who are authorized to attend, view, or listen to the associated seminar

3 ABOUT THE SPEAKERS Timothy C. Carwile, Allen & Carwile, P.C. / Waynesboro Tim Carwile is a graduate of the University of Virginia and The T.C. Williams School of Law. He began the practice of law, in 1973, as the Executive Director of the Legal Aid Society of Greater Lynchburg. He moved to Waynesboro in 1974, practicing with W. Charles Poland, serving for eight years as Assistant Commonwealth s Attorney before co-founding the firm of Carwile & Ricketts, P.C., which merged with Carter R. Allen, R. Toms Dalton, Jr. and G. William Watkins in 1987 to form the present professional corporation, Allen & Carwile, P.C. His practice focuses primarily on trial practice and criminal defense representation. Mr. Carwile frequently serves as a Commissioner in the Augusta County, Virginia, Circuit Court. He is also a frequent lecturer on various legal topics, having spoken for the Virginia CLE on the defense of DUI and other serious traffic cases, and is a co-author of the current definitive work on the subject, Defense of Serious Traffic Cases in Virginia. He has also written extensively on many other aspects of criminal defense law. Mr. Carwile retired in 2011 as a member of the Mandatory Continuing Legal Education Committee appointed by the Virginia Supreme Court. Robert E. Reibach, Chucker & Reibach / Richmond Bob Reibach graduated from Virginia Military Institute and received his law degree in After serving as attorney in the JAG Corps of the United States Army, Mr. Reibach received a Masters of Law from Southern Methodist University earning a class rank of number one in that program. From 1985 to 1995, he worked on mergers and acquisitions and the representation of assorted businesses in San Antonio, Texas, where he also served as an adjunct professor of law. In 1995, Mr. Reibach relocated to Virginia and formed Chucker & Reibach where he began to defend traffic offenses, concomitantly with his business practice. He was named to the faculty of drunk driving and serious traffic offenses for Virginia CLE and currently teaches traffic law in continuing legal education seminars. Mr. Reibach has been extremely effective for his thousands clients and is well respected by the Commonwealth's judges and police officers. He has received the highest legal rating possible from Martindale Hubbell Legal Directory.

4

5 Table of Contents Traffic Offenses: Your First Case Timothy C. Carwile I. Tips for the Beginner Traffic Lawyer... I-1 A. General Considerations... I-1 B. Pretrial dealings with client... I-1 C. Preparation... I-2 D. The Day of Trial... I-2 E. Trial... I-3 F. Post-Trial... I-3 II. Law Every Traffic Lawyer Should Know... I-4 A. Reckless driving defined... I-4 B. Speeding/Reckless driving by speed. Untiedt v. Commonwealth, 18 Va. App. 836, 447 S.E.2d 537 (1994)... I-4 C. Weaving... I-4 D. Expungement... I-5 VIRGINIA LAWYERS PRACTICE HANDBOOK "Defending Serious Traffic Offenses in Virginia" Second Edition Substantive Law - Chapter Overview... II Types of Offenses...II Uniform Demerit Point System....II Jurisdiction...II Collateral Consequences...II-2

6 1.2 Serious Traffic Offenses Not Based On Intoxication...II Reckless Driving....II Aggressive Driving....II Attempt to Elude an Officer....II Hit-and-Run....II Unlicensed Driving....II Driving a Commercial Vehicle While Disqualified....II Intoxication-Related Offenses...II Driving While Intoxicated....II Underage Driving After Illegal Alcohol Consumption....II Commercial Licensees Operating Under the Influence...II DUI-Related Manslaughter....II DUI-Related Serious Bodily Injury....II-30 Form 1 Client Intake and Interview Forms... III-1 Form 2 Sample Letter Transmitting Fee Agreement... IV-1 Form 3 Sample Fee Agreement Form... V-1

7 Traffic Offenses: Your First Case Timothy C. Carwile Allen & Carwile, P.C. 1 I. Tips for the Beginner Traffic Lawyer A. General Considerations 1. Professional dress 2. Professional conduct with: a. Judges b. Prosecutors c. Clerks d. Police officers B. Pretrial dealings with client 1. Never make promises/predictions of results; simply assure client that you will use your best efforts; then, DO IT, every time! 2. Acquaint client with judges /prosecutors predispositions on cases, if you know; if you don t, try to find out! 3. Consider going to an unfamiliar court to observe on a date PRIOR to your client s court date. 4. Take advantage of the transactional nature of representation of traffic clients (and ease the heartburn of your liability insurance carrier) by developing a written fee agreement that sets forth (and places time limits upon) among other things, your firm s responsibility to maintain files, 2 and send end of representation letter to client immediately upon the conclusion 1 Timothy C. Carwile, This is the language I use in my Fee Agreements: Upon termination of Counsel s representation of Client, Client has the right to request the return of any original documents that he/she has entrusted to Counsel and the right to obtain other materials contained in Client s file. However, upon the expiration of five years after the date that the representation is terminated, Counsel may dispose of and/or destroy any and all materials contained in Client s file, including original documents. Client s signature below constitutes his/her consent to this disposition and/or destruction of the file materials, with the understanding that Counsel will take reasonable steps to preserve the confidentiality of such materials. I-1

8 of his/her case. 3 C. Preparation 1. Be prepared. You have no excuse: you have 1-2 cases; prosecutors/police officers/judges have 100 on any given day! 2. Develop a form to utilize for each initial interview so you cover all bases, leaving little to chance. 3. Get copies of all relevant records: a. Copies of warrants/summonses b. Crash Reports c. Witness statements/police reports 4. Pay pre-trial visit to Clerk s Office to examine Court file on your client s case 5. Contact prosecutor, in advance of Court, if appropriate, to explore plea/disposition. cases!! 6. Pull/critically review all relevant statutes and annotations to cases; Shepardize D. The Day of Trial 1. Get to Court early to talk with your client and his/her witnesses, if any; police officer(s), Commonwealth s witnesses, prosecutor (in speeding cases, attempt to discreetly review police officer s calibration materials required under Untiedt).Encourage your client to arrive at court early so he will be available to discuss last minute details with you and so he ll be more familiar with court room decorum/procedure. 2. Pre-Trial Agreements a. Have a (reasonable) proposal for agreement to proffer to prosecutor for him/her to consider. b. Convey prosecutor s offer (if any) to your client; discuss pros/cons of accepting offer or trying case. c. If you reach an agreement pre-trial with the prosecutor for an agreed-upon disposition, volunteer to put it in writing and send him/her a copy immediately after Court so as 3 I incorporate a sentence in my letter to all clients that I mail the day of their dispositional hearing that summarizes the results of the hearing and then adds, as a final paragraph: Unless you advise me in writing that you have questions regarding the matters contained in the letter, this will conclude my firm s representation of you. I-2

9 to confirm the understanding and ask, in the text of the letter, that he/she advise you promptly if any of your understandings are incorrect so that you may amend letter to clarify your agreement. 3. Prep client to testify, if necessary. a. Almost NEVER have client testify in a DUI. b. Most courts have private conference rooms; take your client to one to talk, if one is available. bench). c. Show client where/how to stand at the bar (no slouching; no leaning on d. Tell client about appropriate dress for Court. e. Tell client to speak clearly; yes, sir/ma am to everyone; always respectful; answer only the question asked; if he does not know or recall, simply say so don t speculate. E. Trial 1. If you have to try the case, prepare for yourself a list of topics (not questions) to be covered for each witness, both Commonwealth s and your own; and LISTEN to their answers!!!! 2. If case has a threshold issue (oral Motion to Suppress on stop, admissibility of drug/blood test, etc.), consider giving the Court (and opposing counsel) a heads up in a short opening statement. 3. Prepare a brief written outline of your final argument, even if it s just mitigation, and present it promptly and succinctly. (Remember, this judge has 100+ cases today; don t bore him/her with asinine/improbable arguments! Be considerate of his/her time and docket.) F. Post-Trial 1. If you are disappointed with results, respectfully note your appeal and ask for a recognizance appeal bond or, in the alternative, that the current bond be continued during the appeal. 2. If your client is convicted and does not wish to appeal, do him/her the courtesy of accompanying him/her to the Clerk s window and explain what just happened, payment options, etc., in advance of the Clerk s explanation; ask Clerk for copy of summons after costs are computed so you ll have a record of the Court s decision to place in your client s file for posterity/future reference. I-3

10 3. The same day of your case, if possible, send a letter to your client, confirming the disposition of their case and advising client that this concludes your representation of them!! (Your liability insurance carrier will love you!) II. Law Every Traffic Lawyer Should Know A. Reckless driving defined 1. The mere happening of an accident does not give rise to an inference of reckless driving. Powers v. Commonwealth, 211 Va. 386, 177 S.E.2d 628 (1970). 2. Arguably the most-often cited case in Virginia criminal law. Never admit that you do not understand the principles enunciated in Powers. Tattoo this case on your forearm and look for opportunities to cite it for the benefit of your client. It involves a 1970 Goochland County, VA conviction for reckless driving overturned on startling facts. 4 B. Speeding/Reckless driving by speed. Untiedt v. Commonwealth, 18 Va. App. 836, 447 S.E.2d 537 (1994), sets forth the documents and relevant Virginia statutes that the Commonwealth must introduce to prove accuracy of police RADAR, etc. in speeding/reckless driving by speed cases. C. Weaving as Probable Cause/Reasonable Articulable Circumstancesto warrant a constitutional Terry stop 1. United States v. Gregory, 79F.3d 973 (10 th Cir. 1996) a. Police officer passed a U-Haul rental truck headed in the same direction which was being driven by the defendant, a black male. As the officer passed, he looked in his rear view mirror and saw defendant's U-Haul truck cross two feet into the right shoulder emergency lane of the interstate. The incident was a single occurrence. The Court held that these facts did not warrant a constitutional Terry Stop. Citing U.S. v. Lyons, 7 F.3d 973, 976 (10 th Cir. 1993), if failure to follow a perfect vector down a highway or keeping one s eyes on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy. Id. at The word recklessly as used in the statute imparts 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. Speed alone is not a violation of this statute, but only becomes so when it endangers life, limb or property. The mere happening of an accident does not give rise to an inference of reckless driving. The Commonwealth argues that since defendant's car traveled an erratic course for more than 900 feet and struck the trees with such force that the motor was wrenched from it and defendant was thrown clear of the car and injured, reckless driving may be inferred. We do not agree. We have no way of determining from the evidence in this record how and why the accident happened. The Commonwealth's evidence leaves much to speculation and conjecture as to what caused defendant to lose control of the car. We cannot say that the evidence here excludes every reasonable hypothesis of innocence and is consistent only with the guilt of the defendant. Powers, 177 S.E.2d 628, 630 (emphasis added, internal citations omitted). I-4

11 2. Neal v. Commonwealth, 27 Va. App. 233, 498 S.E.2d 422 (1998) a. Stop and resulting DUI and Habitual Offender convictions upheld where the Police Officer stopped defendant, after receiving a radio dispatch to be on the lookout for a "reckless" driver, when he shortly thereafter observed the defendant s car for approximately ½ mile and 25 seconds traveling 65 MPH in the right southbound lane of I-81 in Shenandoah County weaving inside his lane 5-10 times, then crossing into the left southbound lane where it touched, just touched the line on the right side of the lane. 3. King v. Commonwealth, 1995 Va. App.LEXIS (1995) a. Stop unconstitutional where the police officer observed defendant s vehicle approach Rt. 29 on Rt. 211 and stop for about two seconds before merging onto Rt. 29 from merge lane despite the fact that there was no traffic to which he needed to yield. A momentary stop at a yield sign is neither illegal nor indicative of illegal behavior. Rather, it is a prudent and reasonable act of a cautious driver. Similarly, a momentary drift across a lane divider between lanes traveling in the same direction when merging from an intersection does not suggest criminal activity. 4. Commonwealth v. Webb, 56 Va. Cir. 419 (2001) a. DUI charge dismissed and evidence seized suppressed as result of a constitutionally infirm stop of defendant s vehicle where defendant s vehicle moved one complete cycle, whereby its wheels touched, but did not cross, the left lane divider, followed by a move to the right, then back to the left. Court characterized the defendant s driving behavior to be more in the nature of an isolated instance of mild weaving as opposed to constant weaving. 5. Freeman v. Commonwealth, 20 Va. App. 658, 460 S.E.2d 261 (1995) a. Weaving within lane coupled with slow driving, rising to the level of impeding traffic, constitutes reasonable articulable suspicion of criminal behavior warranting a constitutionally permissible stop and subsequent arrest for DUI. D. Expungement: particularly useful for the youthful offender to protect his/her future employability 1. Routinely applicable in drunk in public, DUI, larceny, underage alcohol possession, or any Class 1 misdemeanor, where conviction or mere dismissal on terms after finding of facts sufficient might result in the offender having a record that would appear on a routine job-related background check. 2. Expungement statute is Va. Code Ann It provides, in pertinent part, that expungement petition may be filedwhere defendant is a. acquitted, or b. a nolle prosequi is granted; or I-5

12 c. where the charge is otherwise dismissed (including a dismissal by accord and satisfaction pursuant to Va. Code Section ). 3. NOTA BENE: Current Virginia appellate case law provides that a charge dismissed under first offender drug statute (Va. Code Ann , which provides forprobation and ultimate dismissal conditioned on a plea of guilty or a finding of guilt) is NOT otherwise dismissed under the expungement statute, the Court reasoning that (o)ne who is guilty cannot occupy the status of innocent so as to qualify under the expungement statute as a person whose charge has been otherwise dismissed. Gregg v. Commonwealth, 227 Va. 504, 316 S.E.2d 741 (1984). 4. Additionally, a person whose case is deferred from judgment following a determination that the evidence is sufficient to support a conviction is not "innocent" of the offense regardless of the plea originally entered. Nor does a dismissal following satisfaction of the terms of that deferral render the case "otherwise dismissed" for purposes of expungement. Commonwealth v. Jackson, 255 Va. 552, 499 S.E.2d 276 (1998). 5. So, if you represent a youthful offender on an otherwise apparently minor charge, be mindful of the expungement statute s provisions, as clarified by Gregg and Jackson,and, if you are given the opportunity to craft a creative remedy for your client, attempt to do so such that your client s future right to expungement is not hopelessly compromised by your ineptitude or, if you prefer, add a second tattoo to your forearm containing your liability insurance carrier s contact information! I-6

13 295 CHAPTER 1 SUBSTANTIVE LAW 1.1 OVERVIEW Types of Offenses. Virginia law pertaining to the operation of motor vehicles specifies three basic levels of misconduct infraction, misdemeanor, or felony that are subject to court and administrative sanctions. A traffic infraction is any violation of the provisions of title 46.2 of the Virginia Code that is not a felony or misdemeanor. 1 Following too closely, 2 for example, is a traffic infraction (provided that it does not amount to aggressive driving). 3 A violation of a provision of title 46.2 is a traffic infraction unless the section that is violated states otherwise, and is punishable in the same manner as a Class 4 misdemeanor. 4 This book is primarily concerned with misdemeanor and felony violations Uniform Demerit Point System. Section of the Virginia Code provides for a uniform demerit point system for drivers convicted of various traffic offenses. Point values are assigned depending on the severity of the offense and the potential harm to others. Section (D) contains a nonexhaustive list of serious offenses, the violation of which will result in the assessment of six demerit points. 5 A driver who is convicted of more than one such offense on a single occasion is only assessed points for the offense that carries the highest point value. 6 Section provides separately for drivers who commit serious offenses while operating under a commercial license. In addition to other punishments imposed by law, the commercial driver can be disqualified from holding a commercial license for a serious traffic violation, and this period of disqualification runs consecutively with any other periods of loss of license due to an excess number of demerit points Jurisdiction. The general district courts have exclusive original jurisdiction over traffic infractions committed by adult drivers. 7 The juvenile and domestic relations district courts have exclusive jurisdiction over traffic infractions and most other motor vehicle related offenses when the driver is a juvenile. 8 The 1 See Va. Code , Va. Code Va. Code Va. Code Serious offenses include violations of Virginia Code sections (driving while intoxicated), (persons under 21 driving after illegally consuming alcohol), and (reckless driving). 6 Va. Code (E). 7 Va. Code Va. Code II-1

14 296 S ENTENCING AND A DMINISTRATIVE S ANCTIONS general district courts have exclusive original jurisdiction over misdemeanor cases 9 and over the preliminary hearing of felony offenses when a felony is charged by warrant rather than indictment. 10 Circuit courts have exclusive original jurisdiction over the trial of felonies Collateral Consequences. Conviction of an offense arising from the use of a motor vehicle can have significant collateral consequences. For those who must drive to obtain or hold a job, or whose jobs involve the operation of commercial motor vehicles, the loss of a driver s license can be devastating. Some jurisdictions have taken advantage of section of the Virginia Code by passing local ordinances to recover the reasonable costs incurred in responding to an accident or other incident caused by a traffic offense which generally can add up to $350 to the costs of a conviction. Municipalities also have the option of taxing the actual cost to the offender with a cap set at $1000 by the current statute. Additionally, there are out-of-pocket costs, such as payment of any fines imposed and increased automobile insurance premiums. Counsel must be aware of all possible consequences when representing clients charged with driving offenses. There is no substitute for a careful reading of the relevant statutes. 1.2 SERIOUS TRAFFIC OFFENSES NOT BASED ON INTOXICATION Reckless Driving. A. The Statute. The basic offense of reckless driving is contained in Virginia Code section 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. 12 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. 13 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 is not evidence that the operation was reckless. 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, Reckless 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 Va. Code Va. Code Va. Code Va. Code Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628, 630 (1970). 14 Thompson v. Commonwealth, 27 Va. App. 720, , 501 S.E.2d 438, 440 (1998) (citations omitted) II-2

15 SENTENCING AND A DMINISTRATIVE S ANCTIONS 297 Any driver who is charged with and convicted of reckless driving will be guilty of a Class 1 misdemeanor, 15 with a possibility of license suspension for a minimum of 10 days to a maximum of six months and the assessment of six demerit points from the Department of Motor Vehicles (DMV). 16 If the court believes that the act was drug- or alcohol-related, the defendant may also be ordered to complete an Alcohol Safety Action Program (ASAP). 17 The DMV cannot reinstate that person s driver s license until the program certifies this enrollment. A restricted license may be issued in the court s discretion during the suspension period. 18 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. 19 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. 20 Improper driving is further discussed below. The prosecutor also has discretion to reduce the charge before trial. Improper driving cannot be charged by a police officer at the scene; it is a discretionary reduction of the 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. 21 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 awarding any other penalties for the more serious forms of reckless driving. 22 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 (E), but not to a defendant who has a commercial license. 23 If the facts indicate that drugs or alcohol contributed to the defendant s behavior, the court may also order enrollment and successful completion of ASAP; if this is required, the DMV cannot reinstate the defendant s license until such enrollment is certified by the program Va. Code Va. Code ; see, e.g., Mattox v. Commonwealth, 46 Va. App. 577, 620 S.E.2d 550 (2005) (juvenile sentenced as serious offender under section of the Virginia Code due to the aggressive, violent, and willful manner of incident). 17 Id. 18 Id.; see Va. Code (E) (terms of the restricted license). These terms have been expanded annually in recent years. In addition to permitting an offender to drive to and from work and during work for work-related reasons, courts can permit driving to and from school and driving for child care and custody purposes, medical reasons, church, VASAP, probation, jail, and ignition interlock appointments. 19 Va. Code (B). 20 Va. Code Mayo v. Commonwealth, 218 Va. 644, 648, 238 S.E.2d 831, 833 (1977). 22 Va. Code (A). This applies to the reckless driving charges that are set forth in sections through Va. Code (B). 24 Va. Code II-3

16 298 S ENTENCING AND A DMINISTRATIVE S ANCTIONS B. Reckless Driving Offenses. 1. Improper Driving. Improper driving is simply reckless driving where a judge finds that the defendant s culpability is slight. 25 The distinction is critical; reckless driving is a Class 1 misdemeanor, whereas improper driving is a mere traffic infraction. Improper driving is not a lesser included offense to 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 prior to verdict. A jury cannot find a defendant charged with reckless driving guilty of improper driving Improper Control or Faulty Brakes. Section 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 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. 28 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 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. 30 The statute specifically 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, 25 Va. Code Chibikom v. Commonwealth, 54 Va. App. 422, 680 S.E.2d 295 (2009). 27 Kennedy v. Commonwealth, 1 Va. App. 469, 339 S.E.2d 905 (1986). 28 Va. Code Va. Code Va. Code II-4

17 SENTENCING AND A DMINISTRATIVE S ANCTIONS 299 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 two vehicles to be in the same lane except for two-wheeled motorcycles which are permitted to travel abreast in a lane otherwise designated for one vehicle. 31 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, 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. 32 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. 33 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, a driver does not have to stop if the school bus is on a portion of road that is separated from the 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 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 as prescribed in section Failing to Give Proper Signals. A driver may be guilty of reckless driving for failure to give an adequate and timely signal of an 31 Va. Code Va. Code Va. Code Id II-5

18 300 S ENTENCING AND A DMINISTRATIVE S ANCTIONS intention to turn, slow down, or stop. 35 Signals are required whenever the operation of another vehicle may be affected by the driver s action. The basic requirement is that the driver must first see that the contemplated movement can be made safely and then give a signal that is plainly visible to other drivers indicating the change in direction or speed. 36 Not surprisingly, many of the reported decisions interpreting these statutes arise in the context of civil actions for personal injury or property damage that follow trial of the traffic cases. The cases clarify the duty created by the statute and the consequences of a driver s failure to comply. Although drivers are entitled to presume that other users of the highway will give proper signals that indicate their intentions, this presumption does not relieve a driver of the duty to exercise ordinary care. 37 The fact that a driver has the right of way also does not relieve the driver of the duty to give a proper signal Driving Too Fast for Traffic Conditions. It is also reckless driving to exceed a speed that is reasonable given the circumstances and traffic conditions existing at the time regardless of the posted speed limit Exceeding Speed Limit. Speed alone can form the basis for a reckless driving charge. The presumptive maximum speed on interstate highways, limited access divided highways, and all state primary highways is 55 miles per hour unless otherwise posted, 40 in which case the speed limit can be up to 70 miles per hour. Traveling at a speed of at least 20 miles per hour over any applicable limit is a reckless driving violation. 41 Regardless of the speed limit, driving at a speed in excess of 80 miles per hour will always be a reckless driving violation this means that the crime of reckless driving can ensnare those driving only 11 miles per hour over the posted limit Failure to Yield Right of Way. Where a yield sign is posted, a driver entering a highway from a side road 43 must yield the right of way to 35 Va. Code See Va. Code et seq. (requirements for signaling). 37 See, e.g., Luck v. Rice, 182 Va. 373, 29 S.E.2d 238 (1944) (decided under prior law). 38 Cubbage v. Meadows, 215 Va. 502, 211 S.E.2d 262 (1975) (decided under prior law). 39 Va. Code Va. Code Va. Code Id. 43 It is interesting how the statute uses the words highway and side road. The word highway is a term of art; the term side road is not. Va. Code Roads in and through condominium developments can be deemed highways. See Furman v. Call, 234 Va. 437, , 362 S.E.2d 709, (1987). Certain private parking lots and convenience stores cannot. See Caplan v. Bogard, 264 Va. 219, 563 S.E.2d 719 (2002) (holding that the private parking lot of a restaurant, including its entrance, was not a highway pursuant to Virginia Code section ); Roberts v. Commonwealth, 28 Va. App. 401, 504 S.E.2d 890 (1998) (holding that a convenience store parking lot, which was privately owned and which was only accessible to the public in connection with the owner s business invitation, was not a highway under Virginia Code section ). Just because a parking lot is not a highway does not mean that it is a side road II-6

19 SENTENCING AND A DMINISTRATIVE S ANCTIONS 301 traffic coming in either direction. Where there is no yield sign, the driver entering the highway must come to a full stop if traffic on the highway is within 500 feet of the side road entrance. 13. Racing. It is illegal for anyone to race on any road, church, school, recreational facility, or business property open to the public unless authorized by the owner. 44 It is also illegal to aid or abet a race. 45 A race is a contest. Therefore, the most common fact pattern two cars driving very fast, one behind the other may not be sufficient to prove racing. Instead, one car needs to be attempting to pass the other. 46 Admissions from the drivers could also prove racing. In addition to the reckless driving penalties, a court must suspend the racing offender s driver s license for at least six months but not more than two years. 47 However, if a person not involved in the race is seriously injured, and the behavior of the drivers was so gross, wanton, and culpable as to show a reckless disregard for human life, the crime rises to a Class 6 felony, and the license suspension period is not less than one year nor more than three years. 48 If a death results, the driver is guilty of an unclassified felony punishable by not less than a mandatory one-year sentence, with a possible sentence of up to 20 years. 49 Aiding or abetting a race is punished as a Class 1 misdemeanor. 50 Vehicles used to race can be seized and forfeited if the owner was aware of or involved in the race Not Yielding to Stationary Emergency Vehicles. When approaching a stationary vehicle displaying emergency lights, all drivers must proceed with caution and, if it is safe to do so, yield the right of way by moving out of the lane next to the stopped emergency vehicle. 52 A first offense is a traffic infraction, but second and subsequent offenses are punishable as Class 1 misdemeanors. 53 This statute does not apply in work zones. 54 In addition to other penalties, if property damage results, the court may suspend the driver s license for not more than one year. If injury results, 44 Va. Code Va. Code Commonwealth v. Mowery, 12 Va. Cir. 418 (Frederick 1969). 47 Va. Code Va. Code (A)(1). 49 Va. Code (A)(2). 50 Va. Code Va. Code Va. Code (A). 53 Va. Code (B). 54 Va. Code (D) II-7

20 302 S ENTENCING AND A DMINISTRATIVE S ANCTIONS the suspension may be for not more than two years; a violation that causes the death of another person is punishable by a two-year suspension. 55 Not surprisingly, many of the reported decisions interpreting the statutes related to reckless driving arise in the context of civil actions for personal injury or property damage that follow trial of traffic cases. Case law clarifies the various duties created by each statute, as well as the consequences of a driver s failure to comply Aggressive Driving. Aggressive driving is an offense that is comprised of one or more predicate offenses committed in combination with one of several additional elements. 56 The charge involves the commission of any one of twelve enumerated traffic offenses combined with either (i) being a hazard to another person or (ii) intending to harass, intimidate, injure, or obstruct another person. The predicate offenses are: (i) failure to leave adequate room when passing a vehicle; 57 (ii) improper passing on right side; 58 (iii) failure to permit overtaking vehicle to pass; 59 (iv) failure to permit overtaking vehicle to pass in left lane; 60 (v) improper overtaking and passing; 61 (vi) failure to keep to the right side of the road; 62 (vii) failure to observe rules for lanes marked for traffic; 63 (viii) following too closely; 64 (ix) speeding; 65 (x) stopping on a highway; 66 (xi) evasion of traffic control devices; 67 and (xii) failure to yield right of way before entering a road. 68 Violations of the aggressive driving statute are punishable as Class 2 misdemeanors. If the offender intended to injure another, the offense rises to a Class 1 misdemeanor. 69 Regardless of the class of the violation, courts can order violators to complete an aggressive driving class in addition to other sanctions imposed by law. 55 Va. Code (C). 56 Va. Code Va. Code Va. Code Va. Code Va. Code Va. Code Va. Code Va. Code Va. Code Va. Code et seq. 66 Va. Code Va. Code Va. Code Va. Code (B) II-8

21 SENTENCING AND A DMINISTRATIVE S ANCTIONS Attempt to Elude an Officer. An attempt to elude a law enforcement officer is treated separately from the other reckless driving offenses. A driver who fails to stop his or her vehicle after receiving a police officer s visible or audible signal to do so, and who also drives in a willful and wanton disregard of such signal or attempts to escape, on foot, in the vehicle, or by any other means, is guilty of a Class 2 misdemeanor. 70 If the driver s operation of the vehicle also interferes with or endangers the police vehicle or any person, the charge is a Class 6 felony. 71 (The defendant driver himself counts as a person endangered, so it is easy to trigger the felony.) 72 In either instance, the statute provides that it is an affirmative defense that the defendant reasonably believed that the pursuit was by a person other than a police officer. Section (D) provides for mandatory license suspension upon conviction of either charge. The suspension for the misdemeanor violation is for not less than 30 days nor more than one year. But if the driver s speed was more than 20 miles per hour over the speed limit where the offense occurred, the minimum suspension must be at least 90 days. If a law enforcement officer is killed as a result of the pursuit, the charge is a Class 4 felony. 73 The statute expressly provides that a prosecution for violating section and a prosecution under other sections of the Virginia Code based on the same actions is permissible. 74 This language may raise some double jeopardy concerns Hit-and-Run. There is no crime or traffic offense connected with simply being involved in an automobile collision. Instead, police officers responding to the scene of an accident will charge the person they believe to have caused the collision with the offense that led to it. In many instances, the offense charged for an accident is following too closely. 75 A more serious offense is failure to report the accident, commonly known as a hit-and-run. Without regard to the cause of an accident, Virginia law imposes various reporting duties upon drivers and their passengers, 76 but only if the driver knows that he or she was in an accident. 77 The duties vary according to whether all involved vehicles are attended and the extent of any injuries. Knowledge of injuries or property damage is an element of the offense. The defendant driver must know 70 Va. Code (A). 71 Va. Code (B). 72 Phelps v. Commonwealth, 275 Va. 139, 654 S.E.2d 926 (2008) (holding that the endangering of a person includes the defendant). 73 Va. Code (C). 74 Va. Code (E). 75 Va. Code Va. Code et seq.; see, e.g., Gruss v. Commonwealth, Rec. No , 2005 Va. App. LEXIS 339 (Va. Ct. App. Sept. 6, 2005) (evidence showing defendant left the scene before investigation was complete, did not give his name, and did not return phone calls sufficient to prove he violated statute). 77 Herchenbach v. Commonwealth, 185 Va. 217, 38 S.E.2d 328 (1946); Cottee v. Commonwealth, 31 Va. App. 546, 525 S.E.2d 25 (2000). However, failure to know the extent of the accident is no excuse. James v. Commonwealth, 178 Va. 28, 16 S.E.2d 296 (1941); see also Neel v. Commonwealth, 49 Va. App. 389, 641 S.E.2d 775 (2007) (Court of Appeals reversed felony conviction where minimal property damage did not tip off defendant that other driver was injured) II-9

22 304 S ENTENCING AND A DMINISTRATIVE S ANCTIONS that the collision resulted in personal injuries. 78 While it would seem that these reporting duties violate one s constitutional right to avoid self-incrimination, the Virginia Supreme Court has ruled to the contrary. 79 If the vehicle or other property that is hit is unattended, the driver must make a reasonable effort to find the owner and report his or her name, address, driver s license number, and vehicle registration number. 80 A driver who cannot find the owner must leave a note or some other form with sufficient information including the driver identification and contact information required by section and, within 24 hours of the accident, report the collision to the police with the date, time, place, and a description of the damage. 81 If the driver is injured and cannot do these things, he or she must make the report as soon as reasonably practical. 82 If the driver fails to take these steps, all passengers over 16 years of age have 24 hours to notify the police of the accident or the passengers are also subject to criminal penalties. 83 If both vehicles are attended, the drivers must stop as close to the scene as practical without obstructing other traffic. The drivers must report their names, addresses, driver s license numbers, and vehicle registration numbers to the police or each other (or to the passengers if a driver is incapacitated). 84 The driver must also render reasonable assistance to an injured party, such as taking the person to the hospital. 85 If the driver fails to do this, all passengers over 16 years of age have 24 hours to notify the police of the accident. Otherwise, the passengers are also subject to the criminal penalties applicable to the driver. 86 The penalties for a violation can be severe. If the struck vehicle or other property was unattended and the damage was less than $250, the crime is only a Class 4 misdemeanor, but if the damage to the unattended vehicle exceeded this amount, the crime rises to a Class 1 misdemeanor. 87 When an accident results in the death or injury of any person, the crime of hit-and-run rises to a Class 6 felony. Section includes its own specific penalties applicable to drivers. If the vehicle was attended and the damage was $1,000 or less, the crime is a Class 1 misdemeanor, but if the accident results in the death or injury of any person, or the damage exceeds $1,000, then the crime of hit-and-run is a Class 5 felony. Even when 78 Brannon v. Commonwealth, 52 Va. App. 800, 667 S.E.2d 841 (2008). 79 Banks v. Commonwealth, 217 Va. 527, 230 S.E.2d 256 (1976); see also Jessee v. Johnson, No. 7:10-cv-00224, 2011 U.S. Dist. LEXIS 13841, at *22-23 (W.D. Va. Feb. 11, 2011). 80 Va. Code Id. 82 Id. 83 Va. Code Va. Code Even if the information exchange required has occurred at the scene, the driver has an independent duty to report an accident resulting in injury or death immediately to a law enforcement officer. Va. Code Va. Code Va. Code Va. Code II-10

23 SENTENCING AND A DMINISTRATIVE S ANCTIONS 305 there are multiple injuries, the defendant can only be convicted of one count for failure to stop at the scene because, as a matter of law, the evidence of a single accident can support only one violation of the statute. 88 The Virginia Supreme Court has ruled in the context of this statute that involved in an accident means (i) the driver s vehicle made physical contact with a person, vehicle or other property or (ii) that the driver is the proximate cause of the accident. 89 In addition to the criminal penalties, a court can suspend a driver s license for up to six months if the damage was to property only and the damage exceeded $500 in value. 90 Oddly, this penalty does not apply to the more serious forms of hit-andrun. Nevertheless, suspension and revocation for such crimes are possible under other provisions of the Virginia Code. For all violations, localities can require repayment of emergency response expenses Unlicensed Driving. Unlicensed driving is illegal in Virginia. There are three forms of unlicensed driving: (i) no license was ever issued or a previously issued license expired or otherwise became invalid; 92 (ii) the driver failed to carry his license while driving; or (iii) the license was suspended or revoked. A. No License Issued. To operate a motor vehicle in Virginia, one must have been issued a Virginia license and that license must be valid. 93 Exceptions apply for military personnel and their families, out-of-state drivers with valid out-of-state licenses, and those operating farm tractors. 94 Obviously, the most common exception is the out-of-state driver. A person who is validly licensed in another state or country can drive in Virginia. The first violation for driving without a valid license is punishable as a Class 2 misdemeanor. Second or subsequent convictions are Class 1 misdemeanors. A court may suspend the driving privileges of a person convicted for driving without a license for a period not to exceed 90 days. 95 In addition, the law provides for the administrative impoundment of motor vehicles used while violating this statute Tooke v. Commonwealth, 47 Va. App. 759, 627 S.E.2d 533 (2006); see also Robinson v. Commonwealth, 274 Va. 45, 645 S.E.2d 470 (2007) (holding that there can be a felony only when there is physical contact by the driver or the driver is the proximate cause of an accident). 89 Robinson v. Commonwealth, 274 Va. 45, 645 S.E.2d 470 (2007). 90 Va. Code Va. Code Shreve v. Commonwealth, 44 Va. App. 541, 605 S.E.2d 780 (2004) (holding that a suspended license was invalid until the acts of applying for a license, passing an exam, and actually obtaining the license were accomplished). 93 Va. Code Va. Code , -305 to Va. Code Va. Code II-11

24 306 S ENTENCING AND A DMINISTRATIVE S ANCTIONS B. No License in Possession. One must physically carry an operator s license while driving a motor vehicle in Virginia. A person who has been issued a valid operator s license that has not expired or been suspended or revoked and fails to possess it while driving is liable for a traffic infraction. 97 A violation for driving without a license in one s possession is punishable by a $10 fine. If the offender subsequently presents a valid license, the charge must be dismissed upon payment of court costs. 98 C. License Suspended or Revoked. 1. Elements. It is illegal to operate a motor vehicle in Virginia while the privilege to do so has been suspended or revoked. 99 There are only three elements to this offense: (i) one must be driving the motor vehicle; (ii) the driver s license must be suspended or revoked; and (iii) the driver must know that his or her license has been suspended or revoked. 100 For the purposes of this statute, motor vehicle does not include mopeds. 101 The first element of driving on a suspended license driving means driving and not operating in the sense that this distinction is important in a DUI stop. One must actually be driving to be in violation of this section. Moreover, one must be driving on a public road. 102 The second element can be established merely by producing the driving records of the individual. The third element, notice of suspension, is the most difficult for the Commonwealth to prove, because the law provides only for a rebuttable presumption of notice upon notification by mail Penalties. Driving on a suspended license is punished as a Class 1 misdemeanor. However, a third or subsequent offense within a 10-year period results in a mandatory minimum confinement of 10 days. 104 It also requires a license suspension for as long as the license was originally suspended. If the license was indefinitely suspended, the suspension is for an additional period not to exceed 90 days. 105 In some instances, a person can remain suspended even after the courtordered suspension has run. In these situations courts are authorized to issue restricted licenses for this additional suspension period Va. Code Id. 99 Va. Code (B). 100 Bibb v. Commonwealth, 212 Va. 249, 183 S.E.2d 732 (1971). 101 Va. Code (B). But see Va. Code which now states that a moped operated in excess of 35 m.p.h. is a motor vehicle for purposes of the title. 102 Prillaman v. Commonwealth, 199 Va. 401, 100 S.E.2d 4 (1957). 103 The Commonwealth will use the DMV driver records to prove the fact of the suspension and the notice. Va. Code However, section does not cure hearsay issues. See Ingram v. Commonwealth, 1 Va. App. 335, 338 S.E.2d 657 (1986). 104 Va. Code (C). 105 Va. Code (D). 106 Va. Code (E) II-12