Protecting Your Rights
Many drivers make the mistake of assuming that “nothing can be done” or that they should simply “take their medicine”. Others assume that they can simply go to court and testify that they were not driving recklessly and that the judge will drop the charges. Both types of assumptions are generally false.
The purpose of this webpage is to give drivers a few examples of how a reckless driving attorney can help them. This webpage should also help a driver know how to communicate more effectively with any reckless driving attorney they hire.
Even If You Are Guilty, You Can Still Argue For a Reduced Punishment
Even if you are guilty and even if the police can prove it you still have a chance, either through persuasion or by law. The results of a reckless driving charge are never a foregone conclusion.
There is a wide spectrum of punishments and alternative charges besides reckless driving. This means there is a lot of room for a prosecutor and defense attorney to negotiate even when there is no doubt to the driver’s guilt. The biggest mistake a driver can make is to assume that there is nothing he can do.
In order to take advantage of this opportunity to negotiate, it is essential to hire a reckless driving attorney. Some prosecutors and some jurisdictions will not allow unrepresented drivers the opportunity to negotiate before trial. Even in jurisdictions where citizens can talk to the prosecution attorney, an experienced reckless driving attorney will walk into negotiations knowing the prosecution and knowing which arguments matter to that prosecutor.
In each jurisdiction, there are also different rules concerning who makes the decisions regarding sentences and pleas. Some jurisdictions do not assign prosecutors to reckless driving cases while other jurisdictions do. Sometimes, the police officer acts as prosecutor; other times the driver deals directly with the judge. Most unrepresented drivers never get the chance to negotiate a plea because, by the time they figure out the process their opportunity to negotiate is gone.
You Never Know When the Police or Prosecution Are Going to Make a Mistake
Because the burden is on the government to prove the charges against you, there are many opportunities for a simple mistake to benefit your case.
To prove a driver’s speed, the law enforcement officer must (among other things) prove that the equipment used to measure your speed was calibrated recently. They must prove that their equipment was used correctly and that the car they measured was the car they pulled over. The officer must bring proof of these requirements to court and have that proof in the proper format.
For other types of reckless driving, there are unique issues that may arise (such as whether a school bus was equipped with warning devices as required by Va. Code section 46.2-1090 or whether the prosecution is able to properly subpoena the witnesses).
Each day, courts throw out dozens of cases because the police or prosecution failed to prove these things, and a defense attorney was present who knew how to take advantage of the mistake.
The court will usually not require an officer to produce any evidence that their equipment was accurate unless the defense attorney has made the proper challenges according to Virginia’s rules of evidence.
Just Because the Police Say You Were Driving Recklessly Does Not Mean that You Were
In speed cases, do not let the fancy electronics fool you into believing that the police caught you speeding. Speed measuring devices break, they wear down, and they are only as good as the operator using them. For a detailed explanation of speed measuring devices and their inadequacies review chapter 3.
Officers charge innocent people more often in reckless driving cases that involve accidents. In most accident cases the officer has no first-hand knowledge about what happened. The officer is dependent on witnesses to know what happened. It is not uncommon for witnesses to lie, make mistakes, or for the officer to issue a citation without fully understanding what the witnesses have to say.
Officers charge innocent people more often in cases that involve unusual forms of reckless driving. There are more than 14 different types of reckless driving in Virginia but 95% of the reckless driving tickets written are for 46.2-862 (Speeding) and 46.2-852 (Reckless Generally). Some officers can go years without ever having to write a ticket for one of the other types of reckless driving. Consequently officers can make mistakes when they write tickets for one of these more unusual types of reckless driving. For example, an officer may forget that a person has to have had warning that their vehicle was unsafe before they can be convicted of 46.2-853 (Improper control).
It is also important to remember that many forms of reckless driving are very subjective. What one officer considers “reckless” a judge may not consider reckless. It takes an intimate knowledge of the case law and much experience with the local judges before a person can accurately determine whether certain behavior will be considered reckless. That is where an experienced reckless driving attorney becomes extremely helpful.
Despite the many potential technical issues discussed in the ‘Speed Measuring Devices’ portion of this website, the most successful defenses in speed cases involve the admissibility of evidence. Because the police are relying on machines to convict people of crimes, the use of evidence from speed measuring devices is strictly regulated.
It is not enough for an officer to calibrate and test their machine. The officer must bring proof of calibration to court and the court may require the proof to be presented in a very specific format. However, to challenge the admissibility of such evidence, the defense must know not only the rules but also the right time and manner in which to present such a challenge. Because of the technical nature of these defenses, an experienced reckless driving attorney is essential.
Defenses to Reckless Driving Accident Cases
Next to speeding, the most common way drivers get reckless driving tickets in Virginia is by getting into an accident. If you are charged with reckless driving after getting into an accident, you should know the following.
First, you may be issued a reckless driving ticket only if the officer either: 1) personally witnesses you driving recklessly, 2) issues the ticket at the scene of an accident or 3) obtains an arrest warrant. If an officer issues a ticket without meeting one of these conditions, the case may be dismissed. If, in your case, one of these conditions was met, you should consult a reckless driving attorney immediately. The successful defense for this type of case is very technical and must be presented at the right time and in the proper format.
Second, case law can be of significant help to your case. Virginia law is written partly by the legislature and partly by the higher courts. Case law is the collection of opinions written by the higher courts. Case law asserts that an accident is not sufficient to prove reckless driving and that additional evidence must be presented to prove dangerous behavior on the part of the driver.
Unless an officer personally witnesses dangerous behavior, the driver’s own statements or other witnesses must supply this evidence. If you are charged with reckless driving after getting in an accident talk to a reckless driving attorney immediately and tell your attorney everything that you said to the officer. Also record and bring with you as much information as you can about any potential witnesses (including accident reports).
Some of the best defenses in an accident reckless driving case involve the rules of evidence in Virginia. Because most accidents do not happen in the presence of an officer, third party evidence is vital. Such evidence is governed by complex (and sometimes strict) rules of evidence. These rules are not written down in any one place but are the product of tradition and case law. Almost all of these rules require the defendant to object at the right time and in the proper manner in order to make use of these rules. These complexities will become your ally if you have a competent reckless driving trial attorney.