Fairfax Criminal Lawyers | Virginia Defense Attorneys



By Nichols & Green PLLC

April 12, 2016

There are 15 types of reckless driving cases in the Commonwealth of Virginia so there are many different reckless driving defenses.

About 75% of all reckless driving cases are for speeding under Va. Code 46.2-862. General reckless driving under 46.2-852 is the second most common type of reckless driving. Reckless driving for improper control/faulty brakes, and reckless driving for passing a school bus are the third and fourth most common forms of reckless driving.

Reckless Driving By Speed Defenses

With reckless driving by speed cases, there are generally two strategies we use to avoid conviction. The first is to attack the evidence and the second is to explain why our client doesn’t deserve such a harsh conviction.

Attacking the evidence can take many forms but generally involves attacking:

  • Whether the speed measuring device was calibrated and working accurately
  • Whether the officer has proof of calibration in the proper format
  • Whether the officer used the speed measuring device properly, and
  • Presenting evidence of innocence.

Most speed cases involve radar, lidar, or a pace. All three types of speed cases involve an officer relying on a machine to provide evidence. When the police want to present evidence produced by a machine like a speedometer, a radar device, or a lidar device, then the officer must prove that the machine was working correctly. Officers use accuracy checks and calibrations to prove that a device was accurate.

Some calibrations or accuracy checks are performed by the officer who wrote the ticket, others are performed by technicians or other police officers. If someone other than the officer on your case, calibrated a piece of equipment, then the officer needs to have a calibrations certificate. Without the calibration certificate, the officer may not testify that the machine is accurate, and if they can’t testify about the machine’s accuracy then the speed measurement results may not be admissible either. Most of the time, you will win the case if the officer doesn’t have proper calibration certificates.

Radar, Lidar and Speedometer Calibration Certificates

Va. Code 46.2-882 is the code section that governs when a calibration certificate is admissible in court for radar and lidar cases.  Va. Code 46.2-942 is the statute that governs the admissibility of speedometer calibrations. If any officer wants to submit his calibration certificates, those certificates must obey the rules found in those laws.

Lidar and Radar calibration certificates must be Either originals or “true copies”. A true copy is a photocopy that includes a sworn statement from the custodian of the certificate, swears, and affirming that the attached copy is a true copy. True copies must be notarized.

Lidar and Radar calibration certificates are only valid if the tests were performed within 6 months prior to the offense. If the calibration was more than 6 months old, then the certificate is invalid.

Speedometer calibrations need to be a sworn report and they are only admissible when the driver is accused of breaking the maximum speed limit. Speedometer calibrations are not admissible in reckless driving general cases or passing a school bus case for instance.

When the Officer Calibrates his/her Own Device

When an officer performs their own calibration or accuracy tests, the officer does not technically need a calibration certificate because they have first-hand knowledge about how the device was tested and the results of that test.

However, this first-hand knowledge opens the officer up to being cross-examined about the methodology that they used to check the accuracy of the radar device. Whether or not the officer performed the calibration test correctly and whether they can remember how they did the test become very important.

Reckless Driving Defenses from Officer Error.

Measuring the speed of drivers in the real world is difficult. It takes a lot of training and experience before an officer is qualified to write tickets for speed offenses. This training is so important because there are dozens of ways that an officer can produce inaccurate results while measuring people’s speed.

If an officer does not operate their equipment properly, these mistakes can create doubt as to whether the speed measurement was accurate or not. Some common types of radar errors include harmonic Signal interference, Batching, Shadowing, RFI interference, Target Identification errors, Fan Error, moving mode-cosine error.

“Police Radar Defenses – Radar Produces Fake Speed Readings”

Lidar devices are all prone to sweep error. A very common error is caused when the laser beam moves from one spot on a target to another spot on the same target. A have a video demonstrating sweep error by getting a 12 mph reading from a parked car with a calibrated lidar device.

“Police Speed Laser Adds 12 mph to a Parked Car”

Pacing is also prone to errors. If a police officer does not maintain the same speed as the target vehicle the result will be inaccurate. Pacing from different travel lanes is also inaccurate whenever the road curves.

Evidence of Innocence in Speed Cases

Defending a driver is not just about attacking the prosecution’s evidence, it can also involve providing the court proof of innocence. The testimony of the driver and other passengers can be effective evidence if done correctly. Police dashcam footage can also provide evidence of innocence. Calculating the time it takes a police officer to catch and pull over a speeder can also provide evidence of evidence, in high-speed reckless driving cases.

Mitigating Evidence in Speeding Cases

Even if a driver is guilty, that doesn’t mean that they will be found guilty. There are many reasons a judge may choose to lower the charge from criminal reckless driving to a traffic ticket. For the most part, judges use punishments to make sure people slow down and take Virginia traffic laws seriously. Anything you can do to demonstrate that you take the law seriously and will not speed again may help avoid a reckless driving conviction:

  • Having a clean record helps
  • Taking a DMV driver improvement class
  • Taking a reckless driving or aggressive driving avoidance class also helps.
  • Getting your car’s speedometer calibrated by a mechanic (if your speedometer is low or broken – you can argue that this contributed to you accidentally speeding. A broken speedometer is not technically a defense but it may lower your punishment or help you avoid conviction)
  • Doing community service
  • Getting rid of a fast car or motorcycle
  • Parents can also help when their children are defendants by grounding or restricting their children. (This shows the courts that the parents are in control and dealing with the situation in-house.)

Anyone who is charged with reckless driving in Northern Virginia can call the Law Firm of Nichols & Green PLLC to get a free consultation. During that consultation, we will discuss all the defenses that are applicable to your case and we will tell you exactly what you need to do to prepare for court. Call anytime to set up your consultation at (703) 383-9222 or click here to reach us by email.