Tag Archives: Virginia Reckless Driving

Attorney D. Rivera

Virginia Lawyers

Attorney Domingo J. Rivera, MBA, Litigation Specialist (Managing Partner)

Mr. Domingo Rivera is an attorney admitted to practice in Virginia . His unique qualifications and excellent litigation skills and experience combined with his language skills places him in a unique position to be a valuable asset to every client he represents.

Mr. Rivera serves as lead counsel arguing cases in court, filing pleadings, and negotiating settlements. He has presented cases at virtually all levels of the Virginia Courts system from the General District Courts to the Court of Appeals and in the federal courts.

Prior to attending law school, Mr. Rivera completed a B.S. in Electrical and Computer Engineering, and an M.B.A. He is also fluent in speaking and reading Spanish.

As a commissioned officer in the U.S. Navy, he was entrusted with the responsibility for several complex high-tech projects. One of these projects was the construction of the Homeland Security Headquarters in Virginia , a multi-million dollar state-of-the art facility and one of the most important projects in the Department of Defense. In addition, Mr. Rivera also served as the Assistant Resident Engineer in Charge of Contracts at the Norfolk Naval Station. These positions of trust required Mr. Rivera to maintain a Top Secret Clearance.

Mr. Rivera has been featured as a legal commentator nationally and internationally, including interviews with the BBC with audience of over 130 million people. Mr. Rivera’s cases have been reported in many publications, including the Washington Post and the Mount Vernon News.

When you demand excellence in legal counseling as well aggressive and effective courtroom skills, Mr. Rivera can be your attorney of choice. He can provide you with legal advice, from deciding whether to pursue litigation to the jury trial.

Contact attorney Domingo J. Rivera

Virginia (VA) criminal defense, divorce, child custody, reckless driving, dui and federal court attorney representing clients throughout Virginia. Some of the jurisdictions served include:

Henrico County VA, Richmond City, Chesterfield County VA, Hanover County VA, Petersburg County VA, Fairfax County, Prince William County, Hopewell, Petersburg, Dinwiddie, Quantico, Virginia Beach VA, Norfolk, Chesapeake, Fredericksburg, Stafford, Spotsylvania VA, Hampton Roads, Newport News, Hampton, Williamsburg, Amelia, Powhatan, Goochland, Louisa, Manassas VA, Woodbridge, Charles City, James City, Gloucester, Tidewater, Portsmouth, Shenandoah, Prince George, Sussex, New Kent, West End of Richmond, Glen Allen, Federal Court for the Eastern District of Virginia (Richmond, Alexandria, Norfolk, and Newport News Divisions). Continue reading

Posted in Virginia Lawyer | Tagged , , , , , , , , | Leave a comment

Virginia Child Support

Virginia Child Support

Under Virginia law, both parents have an absolute duty to support their children. Virginia has enacted child support guidelines that control the award of child support in Virginia. The Virginia child support guidelines consider the combined income of both parents as well as the cost of medical insurance for the children, extraordinary medical expenses, the cost of daycare, and the support being provided for other children.

The Virginia child support guidelines are presumed to provide the correct level of Virginia child support. In Virginia, the court will rarely deviate from the statutory child support guidelines. However, if the court were to deviate from the guidelines, the court would find that the presumption favoring the Virginia child support guidelines has been overcome. The court will apply the following factors to determine whether to deviate from the Virginia child support guidelines:

* Actual monetary support for other children or family members;
* Arrangement regarding custody of children;
* Imputed income to a party who is voluntarily unemployed or voluntarily underemployed
* Debts of either party arising during the marriage for the benefit of the child;
* Debts incurred for the production of income;
* Independent financial resources of the child;
* Earning capacity, obligations and needs, and financial resources of each parent;
* Written agreements between the parties as to amount of child support;
* other relevant considerations.

Virginia allows for the collection of child support through income withholding orders. Additionally, when the amount of support no longer represents the situation of the parties, Virginia courts can modify the amount of support ordered. For additional Virginia child support information and legal advice:

Contact a Virginia child support lawyer

Virginia (VA) criminal defense, divorce, child custody, reckless driving, dui and federal court attorney representing clients throughout Virginia. Some of the jurisdictions served include:

Henrico County VA, Richmond City, Chesterfield County VA, Hanover County VA, Petersburg County VA, Fairfax County, Prince William County, Hopewell, Petersburg, Dinwiddie, Quantico, Virginia Beach VA, Norfolk, Chesapeake, Fredericksburg, Stafford, Spotsylvania VA, Hampton Roads, Newport News, Hampton, Williamsburg, Amelia, Powhatan, Goochland, Louisa, Manassas VA, Woodbridge, Charles City, James City, Gloucester, Tidewater, Portsmouth, Shenandoah, Prince George, Sussex, New Kent, West End of Richmond, Glen Allen, Federal Court for the Eastern District of Virginia (Richmond, Alexandria, Norfolk, and Newport News Divisions).

Continue reading

Posted in Child Custody | Tagged , , , , , , , | 1 Comment

Virginia Computer Crimes

Virginia Computer Crime Defense

If you are accused of a Virginia computer crime or a Virginia Internet sex crime, we can offer truly unique representation. Based on our research, attorney Domingo Rivera is the only criminal defense attorney in Virginia with a professional degree and experience in Computer Engineering, an M.B.A. with specialty in Information Technology, and experience with the Department of Defense. Mr. Rivera is competent in the legal, technical, and computer forensics aspects related to Virginia computer crimes or Internet crime accusations. To represent you properly, your defense lawyer must not only be well versed in trial techniques but must also be able to command the subject matter underlying computer and Internet crime accusations.

Contact a Virginia computer crime defense lawyer.

Virginia (VA) criminal defense, divorce, child custody, reckless driving, dui and federal court attorney representing clients throughout Virginia. Some of the jurisdictions served include:

Henrico County VA, Richmond City, Chesterfield County VA, Hanover County VA, Petersburg County VA, Fairfax County, Prince William County, Hopewell, Petersburg, Dinwiddie, Quantico, Virginia Beach VA, Norfolk, Chesapeake, Fredericksburg, Stafford, Spotsylvania VA, Hampton Roads, Newport News, Hampton, Williamsburg, Amelia, Powhatan, Goochland, Louisa, Manassas VA, Woodbridge, Charles City, James City, Gloucester, Tidewater, Portsmouth, Shenandoah, Prince George, Sussex, New Kent, West End of Richmond, Glen Allen, Federal Court for the Eastern District of Virginia (Richmond, Alexandria, Norfolk, and Newport News Divisions). Continue reading

Posted in Virginia Crimes | Tagged , , , , , , , | Leave a comment

Virginia Driving On Suspended License

Virginia Driving with a Suspended License, Driving Without License, and other License Related Offenses

In Virginia, Driving on a Revoked or Suspended License is classified as a class 1 misdemeanor carrying a potential maximum of one year in jail, $2,500.00 in fines, civil remedial fees, and driver’s license suspension. A conviction of driving without a license is a class 2 misdemeanor carries a maximum of 6 months in jail and $1,000 in fines.

Some of the issues we handle include:

* Driving with a Suspended License
* Driving Without a License
* Impoundment of vehicle (administrative or judicial)
* Driving with a foreign driver’s license

In Virginia, Driving on a Revoked or Suspended License is a serious traffic charge. These charges frequently arise when somebody’s driver’s license is suspended for failure to pay fines resulting from a traffic infraction or from a DMV administrative suspension. To support a conviction for driving on a revoked or suspended license in Virginia, the Commonwealth must also show that the Defendant had notice of the suspension.

A conviction of driving on a suspended license may carry with it an additional period of suspension, maybe up to an additional year. This may in turn become another charge of driving on a suspended license if you need to drive at any time during that year… the third time a mandatory minimum jail sentence applies.

A competent Virginia lawyer can provide you with assistance if you are accused of driving on a suspended license. Our firm will analyze your particular case, talk to the police officer who gave you the driving on a suspended license ticket, discuss your case with the prosecuting attorney…. then advise you to enter into a negotiated resolution or go through with trial.

The Virginia Driving on a suspended license statute states:

§ 46.2-301. Driving while license, permit, or privilege to drive suspended or revoked A. In addition to any other penalty provided by this section, any motor vehicle administratively impounded or immobilized under the provisions of § 46.2-301.1 may, in the discretion of the court, be impounded or immobilized for an additional period of up to ninety days upon conviction of an offender for driving while his driver’s license, learner’s permit, or privilege to drive a motor vehicle has been suspended or revoked for (i) a violation of §§ 18.2-36.1, 18.2-51.4, 18.2-266 or § 46.2-341.24 or a substantially similar ordinance or law in any other jurisdiction or (ii) driving after adjudication as an habitual offender, where such adjudication was based in whole or in part on an alcohol-related offense, or where such person’s license has been administratively suspended under the provisions of § 46.2-391.2. However, if, at the time of the violation, the offender was driving a motor vehicle owned by another person, the court shall have no jurisdiction over such motor vehicle but may order the impoundment or immobilization of a motor vehicle owned solely by the offender at the time of arrest. All costs of impoundment or immobilization, including removal or storage expenses, shall be paid by the offender prior to the release of his motor vehicle.

B. Except as provided in §§ 46.2-304 and 46.2-357, no resident or nonresident (i) whose driver’s license, learner’s permit, or privilege to drive a motor vehicle has been suspended or revoked or (ii) who has been directed not to drive by any court, by the Commissioner, or by operation of law pursuant to this title or (iii) who has been forbidden, as prescribed by law, by the Commissioner, the State Corporation Commission, the Commonwealth Transportation Commissioner, any court, or the Superintendent of State Police, to operate a motor vehicle in the Commonwealth shall thereafter drive any motor vehicle or any self-propelled machinery or equipment on any highway in the Commonwealth until the period of such suspension or revocation has terminated. A clerk’s notice of suspension of license for failure to pay fines or costs given in accordance with § 46.2-395 shall be sufficient notice for the purpose of maintaining a conviction under this section. For the purposes of this section, the phrase “motor vehicle or any self-propelled machinery or equipment” shall not include mopeds.

C. A first or second offense of violating this section shall constitute a Class 1 misdemeanor. A third or subsequent offense shall constitute a Class 1 misdemeanor punishable by a minimum, mandatory term of confinement in jail of ten days which shall not be suspended in whole or in part. However, the court shall not be required to impose a minimum, mandatory term of confinement in any case where a motor vehicle is operated in violation of this section in a situation of apparent extreme emergency which requires such operation to save life or limb.

In addition, the court shall suspend the person’s driver’s license for the same period for which it had been previously suspended or revoked when the person violated this section.

D. In the event the person has violated this section by driving during a period of suspension or revocation which was not for a definite period of time, the court shall suspend the person’s license, permit or privilege to drive for an additional period not to exceed ninety days. Any additional suspension ordered under the provisions of this section shall commence upon the expiration of the previous suspension or revocation unless the previous suspension or revocation has expired prior to the ordering of an additional suspension or revocation.

Additionally, if you are caught driving with a suspended license in Virginia or allow someone else to drive your vehicle with a suspended license in Virginia, your vehicle may be impounded. The statute reads:

§ 46.2-301.1. Administrative impoundment of motor vehicle for certain driving while license suspended or revoked offenses; judicial impoundment upon conviction; penalty for permitting violation with one’s vehicle.

A. The motor vehicle being driven by any person (i) whose driver’s license, learner’s permit or privilege to drive a motor vehicle has been suspended or revoked for a violation of § 18.2-51.4 or driving while under the influence in violation of § 18.2-266, 46.2-341.24 or a substantially similar ordinance or law in any other jurisdiction; (ii) driving after adjudication as an habitual offender, where such adjudication was based in whole or in part on an alcohol-related offense, or where such person’s license has been administratively suspended under the provisions of § 46.2-391.2; or (iii) driving after such person’s driver’s license, learner’s permit or privilege to drive a motor vehicle has been suspended or revoked for unreasonable refusal of tests in violation of § 18.2-268.3, 46.2-341.26:3 or a substantially similar ordinance or law in any other jurisdiction, shall be impounded or immobilized by the arresting law-enforcement officer at the time the person is arrested for driving after his driver’s license, learner’s permit or privilege to drive has been so revoked or suspended. The impoundment or immobilization shall be for a period of 30 days.

The arresting officer, acting on behalf of the Commonwealth, shall serve notice of the impoundment upon the arrested person. The notice shall include information on the person’s right to petition for review of the impoundment pursuant to subsection B. A copy of the notice of impoundment shall be delivered to the magistrate and thereafter promptly forwarded to the clerk of the general district court of the jurisdiction where the arrest was made. Transmission of the notice may be by electronic means.

At least five days prior to the expiration of the period of impoundment imposed pursuant to this section or § 46.2-301, the clerk shall provide the offender with information on the location of the motor vehicle and how and when the vehicle will be released.

All reasonable costs of impoundment or immobilization, including removal and storage expenses, shall be paid by the offender prior to the release of his motor vehicle. Notwithstanding the above, where the arresting law-enforcement officer discovers that the vehicle was being rented or leased from a vehicle renting or leasing company, the officer shall not impound the vehicle or continue the impoundment but shall notify the rental or leasing company that the vehicle is available for pickup and shall notify the clerk if the clerk has previously been notified of the impoundment.

B. Any driver who is the owner of the motor vehicle that is impounded or immobilized under subsection A may, during the period of the impoundment, petition the general district court of the jurisdiction in which the arrest was made to review that impoundment. The court shall review the impoundment within the same time period as the court hears an appeal from an order denying bail or fixing terms of bail or terms of recognizance, giving this matter precedence over all other matters on its docket. If the person proves to the court by a preponderance of the evidence that the arresting law-enforcement officer did not have probable cause for the arrest, or that the magistrate did not have probable cause to issue the warrant, the court shall rescind the impoundment. Upon rescission, the motor vehicle shall be released and the Commonwealth shall pay or reimburse the person for all reasonable costs of impoundment or immobilization, including removal or storage costs paid or incurred by him. Otherwise, the court shall affirm the impoundment. If the person requesting the review fails to appear without just cause, his right to review shall be waived.

The court’s findings are without prejudice to the person contesting the impoundment or to any other potential party as to any proceedings, civil or criminal, and shall not be evidence in any proceedings, civil or criminal.

C. The owner or co-owner of any motor vehicle impounded or immobilized under subsection A who was not the driver at the time of the violation, may petition the general district court in the jurisdiction where the violation occurred for the release of his motor vehicle. The motor vehicle shall be released if the owner or co-owner proves by a preponderance of the evidence that he (i) did not know that the offender’s driver’s license was suspended or revoked when he authorized the offender to drive such motor vehicle or (ii) did not consent to the operation of the motor vehicle by the offender. If the owner proves by a preponderance of the evidence that his immediate family has only one motor vehicle and will suffer a substantial hardship if that motor vehicle is impounded or immobilized for 30 days, the court, in its discretion, may release the vehicle after some period of less than 30 days.

D. Notwithstanding any provision of this section, a subsequent dismissal or acquittal of the charge of driving on a suspended or revoked license shall result in an immediate rescission of the impoundment or immobilization provided in subsection A. Upon rescission, the motor vehicle shall be released and the Commonwealth shall pay or reimburse the person for all reasonable costs of impoundment or immobilization, including removal or storage costs, incurred or paid by him.

E. Any person who knowingly authorizes the operation of a motor vehicle by a person he knows has had his driver’s license, learner’s permit or privilege to drive a motor vehicle suspended or revoked for any of the reasons set forth in subsection A, shall be guilty of a Class 1 misdemeanor.

F. Notwithstanding the provisions of this section or § 46.2-301, nothing in this section shall impede or infringe upon a valid lienholder’s rights to cure a default under an existing security agreement. Furthermore, such lienholder shall not be liable for any cost of impoundment or immobilization, including removal or storage expenses which may accrue pursuant to the provisions of this section or § 46.2-301. In the event a lienholder repossesses or removes a vehicle from storage pursuant to an existing security agreement, the Commonwealth shall pay all reasonable costs of impoundment or immobilization, including removal and storage expenses, to any person or entity providing such services to the Commonwealth, except to the extent such costs or expenses have already been paid by the offender to such person or entity. Such payment shall be made within seven calendar days after a request is made by such person or entity to the Commonwealth for payment. Nothing herein, however, shall relieve the offender from liability to the Commonwealth for reimbursement or payment of all such reasonable costs and expenses.

[Back to the Top]

Driving without a driver’s license in Virginia is also a serious crime. Although the first conviction is a class 2 misdemeanor, a second or subsequent conviction of driving without a license in Virginia is a class one misdemeanor. The message is clear. Drive without a license and you may go to jail regardless of the quality of your driving! The statute prohibiting driving without a license in Virginia states:

§ 46.2-300. Driving without license prohibited; penalties.

No person, except those expressly exempted in §§ 46.2-303 through 46.2-308, shall drive any motor vehicle on any highway in the Commonwealth until such person has applied for a driver’s license, as provided in this article, satisfactorily passed the examination required by § 46.2-325, and obtained a driver’s license, nor unless the license is valid.

A violation of this section is a Class 2 misdemeanor. A second or subsequent violation of this section is a Class 1 misdemeanor.

[Back to the Top]

Many people get pulled over and charged with driving without a license. However, Virginia law provides protection to people who have a valid foreign diver’s license. However, asserting the protection provided under the law may be tricky at times. Our attorneys can assist you in sorting out this mess. Some of the statutes addressing driving with a foreign driver’s license in Virginia state:

§ 46.2-307. Nonresidents licensed under laws of home state or country; extension of reciprocal privileges.

A. A nonresident over the age of sixteen years and three months who has been duly licensed as a driver under a law requiring the licensing of drivers in his home state or country and who has in his immediate possession a driver’s license issued to him in his home state or country shall be permitted, without a Virginia license, to drive a motor vehicle on the highways of the Commonwealth.

B. Notwithstanding any other provisions of this chapter, the Commissioner, with the consent of the Governor, may extend to nonresidents from foreign countries the same driver’s licensing privileges which are granted by the foreign country, or political subdivision wherein such nonresidents are residents, to residents of this Commonwealth residing in such foreign country or political subdivision.

C. Driver’s license privileges may be extended to nonresidents from foreign countries or political subdivisions who are over the age of sixteen years and three months, have been duly licensed as drivers under a law requiring the licensing of drivers in their home country or political subdivision, and have in their immediate possession a driver’s license issued to them in their home country or political subdivision.

§ 46.2-308. Temporary exemption for new resident licensed under laws of another state; privately owned vehicle driver’s licenses.

A resident over the age of sixteen years and three months who has been duly licensed as a driver under a law of another state or country requiring the licensing of drivers shall, for the first sixty days of his residency in the Commonwealth, be permitted, without a Virginia license, to drive a motor vehicle on the highways of the Commonwealth.

Persons to whom military privately-owned vehicle driver’s licenses have been issued by the Department of Defense shall, for the first sixty days of their residency in the Commonwealth, be permitted, without a Virginia license, to drive motor vehicles on the highways of the Commonwealth.

[Back to the Top]

Our Virginia driving on revoked or suspended license defense lawyers will provide you with a defense if you are accused of driving on a suspended or revoked license in Virginia.

Contact a driving on suspended or revoked license Virginia lawyer.

Virginia (VA) criminal defense, divorce, child custody, reckless driving, dui and federal court attorney representing clients throughout Virginia. Some of the jurisdictions served include:

Henrico County VA, Richmond City, Chesterfield County VA, Hanover County VA, Petersburg County VA, Fairfax County, Prince William County, Hopewell, Petersburg, Dinwiddie, Quantico, Virginia Beach VA, Norfolk, Chesapeake, Fredericksburg, Stafford, Spotsylvania VA, Hampton Roads, Newport News, Hampton, Williamsburg, Amelia, Powhatan, Goochland, Louisa, Manassas VA, Woodbridge, Charles City, James City, Gloucester, Tidewater, Portsmouth, Shenandoah, Prince George, Sussex, New Kent, West End of Richmond, Glen Allen, Federal Court for the Eastern District of Virginia (Richmond, Alexandria, Norfolk, and Newport News Divisions). Continue reading

Posted in Traffic Cases | Tagged , , , , , , , , , , , | Leave a comment

Virginia Reckless Driving

Virginia Reckless Driving Defense Lawyer

In Virginia, Reckless driving is classified as a class 1 misdemeanor carrying a potential maximum of one year in jail, $2,500.00 in fines, and potentially a suspension of your driver’s license.

Virginia Reckless driving is a serious charge. Counting on the knowledge of an experienced, high quality Virginia reckless driving defense attorney is extremely important to protect your freedom, your finances, and even your privilege to drive in Virginia.

A Virginia reckless driving lawyer will aggressively defend your case. As your Virginia attorney, our firm will verify that the device used to measure your speed and the methods used to measure your speed, whether radar, laser, or pace, complies with all the statutory requirements. If a requirement is not met, we will aggressively fight to have the Virginia reckless driving charge dismissed.

A Virginia reckless driving defense attorney also understands that sometimes you may need to negotiate an outcome for your Virginia reckless driving charge. There are times when a good defense lawyer’s job is to make a bad situation better. As such, we are experienced in resolving reckless driving charges… sometimes a reduction to speeding, improper driving, defective equipment, failure to obey a highway sign, or other similar resolution is appropriate for your Virginia reckless driving ticket… Sometimes it’s best to fight…. We will provide you with candid legal advice and you will have the last word on whether to resolve or go to trial for your Virginia reckless driving charge.

The most common forms of reckless driving in Virginia are:

* Virginia reckless driving from speeding 20mph or more over the posted speed limit or speeding over 80 mph in Virginia
* Virginia reckless driving from driving recklessly or at a speed or in a manner so as to endanger the life, limb, or property in Virginia
* Virginia reckless driving from passing a stopped school bus
* Virginia reckless driving from overtaking or passing an emergency vehicle
* Virginia reckless driving from racing
* Virginia reckless driving from driving two abreast in a single lane
* Virginia reckless driving from passing two vehicles abreast
* Virginia reckless driving from failing to give proper signal
* Virginia reckless driving from failure to yield right of way when entering highway
* Virginia reckless driving from an overloaded vehicle as to obstruct or interfere with the driver’s control
* Virginia reckless driving from passing another vehicle at a railroad grade crossing
* Virginia reckless driving from driving too fast for traffic conditions
* Virginia reckless driving from improper brakes or a vehicle not under proper control

Virginia reckless driving charges resulting from speeding 20+ over the posted speed limit or speeding over 80 mph in Virginia

This is perhaps the most frequently charged variety of Virginia reckless driving. Many of our clients are initially shocked to discover that although they were traveling with the flow of traffic and even going at a slower speed than other vehicles, they were still caught driving in excess of 80 mph and charged with reckless driving.

§ 46.2-862. Exceeding speed limit – A person shall be guilty of reckless driving who drives a motor vehicle on the highways in the Commonwealth (i) at a speed of twenty miles per hour or more in excess of the applicable maximum speed limit where the applicable speed limit is thirty miles per hour or less, (ii) at a speed of sixty miles per hour or more where the applicable maximum speed limit is thirty-five miles per hour, (iii) at a speed of twenty miles per hour or more in excess of the applicable maximum speed limits where the applicable maximum speed limit is forty miles per hour or more, or (iv) in excess of eighty miles per hour regardless of the applicable maximum speed limit

[ Back to top ]

Virginia reckless driving charges resulting from driving recklessly or at a speed or in a manner so as to endanger the life, limb, or property in Virginia

§ 46.2-852. Reckless driving; general rule – Irrespective of the maximum speeds permitted by law, any 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 shall be guilty of reckless driving.

But how does the Virginia Code define the degree of negligence required to support a reckless driving conviction in Virginia? What if an accident occurs? Are the happening of an accident, intoxication, or careless driving sufficient to rise to the level of recklessness required to support a conviction for reckless driving in Virginia? The Virginia Court of Appeals had an opportunity to address some of these issues.

501 S.E.2d 438

27 Va.App. 720

Henry Adolphus THOMPSON
v.
COMMONWEALTH of Virginia.

Record No. 1498-97-3.

Court of Appeals of Virginia,
Salem.

July 7, 1998.

Page 439

[27 Va.App. 722] Margaret A. Nelson, Assistant Public Defender, for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General; Leah A. Darron, Assistant Attorney General, on brief), for appellee.

Present: BRAY, OVERTON and BUMGARDNER, JJ.

BRAY, Judge.

Henry Adolphus Thompson (defendant) was convicted in a bench trial for reckless driving and feloniously driving after having been adjudicated an habitual offender, violations of Code §§ 46.2-852 and 46.2-357(B)(2), respectively. On appeal, defendant complains that the evidence was insufficient to support the convictions. We agree and reverse and remand for further proceedings consistent with this opinion.

Under familiar principles, we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

On January 1, 1997, Lynchburg Police Officer M.R. Gillispie was dispatched to a single car accident at 12th and Federal Streets. Upon arrival, Gillispie found an automobile crashed into a utility pole and medical personnel treating a passenger for “severe head injuries.” Neither the driver nor other occupants of the vehicle were at the scene, but Gillispie soon learned that another officer had detained a suspect a “couple blocks from the accident.” Gillispie proceeded immediately to that location and encountered defendant, bleeding from a “visible cut to his face and nose and … complaining of chest pain,” injuries “consistent with the crushed steering wheel and the face print on the driver’s side windshield.” Gillispie also observed that defendant’s eyes were “glassy,” he was “unsteady on his feet,” and emitted “a strong odor of alcohol.” [27 Va.App. 723] When defendant was unable to successfully perform a series of field sobriety tests, Gillispie arrested him for driving under the influence of alcohol. 1

Subsequent to arrest, defendant stated he drove the vehicle at the time of the accident, “because the others were too drunk,” and “had been an habitual offender for about ten years.” Although he denied drinking alcohol after the accident, defendant admitted consuming “about four beers and two shots of liquor” sometime previously, at an unnamed location on Federal Street.

At trial, the court, after accepting defendant’s guilty plea to leaving the scene of the accident in violation of Code § 46.2-894, convicted him upon pleas of not guilty to reckless driving and felonious endangerment by an habitual offender, the instant offenses. On appeal, defendant challenges the sufficiency of the evidence to support the latter convictions.

I. Reckless Driving

Code § 46.2-852 provides, in pertinent part, that “any person who drives a vehicle on any highway recklessly or at a speed in a manner so as to endanger the life, limb, or property of any person shall be

Page 440

guilty of reckless driving.” Code § 46.2-852. “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.” Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628, 630 (1970). “The essence of the offense … lies not in the act of operating a vehicle, but in the manner and circumstances of its operation.” Id.; Hall v. Commonwealth, 25 Va.App. 352, 355, 488 S.E.2d 651, 653 [27 Va.App. 724] 1997). Thus, “[t]he mere happening of an accident does not give rise to an inference of reckless driving.” Powers, 211 Va. at 388, 177 S.E.2d at 630. To convict, the Commonwealth must “prove every essential element of the offense beyond a reasonable doubt,” with evidence which excludes “every reasonable hypothesis of innocence and … consistent only with … guilt….” Id. at 388, 177 S.E.2d at 629.

In Hall, we considered the import of intoxication evidence in a prosecution for reckless driving. Hall was discovered by police ” ‘passed out’ behind the wheel” of an automobile stopped in a heavily traveled roadway, with “ignition switch and headlights … on and … indicator lights … illuminated.” Hall smelled of alcohol, was confused, unsteady, slurred in speech and admitted “driving” the vehicle. However, the record was silent with respect to the “manner and circumstances” of Hall’s driving. Hall, 25 Va.App. at 355, 488 S.E.2d at 653. Guided by Powers, we concluded that such “circumstances … do not give rise to an inference that [defendant] drove … in a reckless manner.” Id. In reversing the conviction, the panel noted that ” ‘evidence of intoxication is a factor that might bear upon proof of dangerousness or reckless driving in a given case,’ ” but ” ‘does not, of itself, prove reckless driving.’ ‘ “One may be both drunk and reckless … [or] reckless though not drunk …[, or] under the influence of intoxicants and yet drive carefully.” ‘ ” Id. at 355 n. 3, 488 S.E.2d at 653 n. 3 (quoting Bishop v. Commonwealth, 20 Va.App. 206, 210, 455 S.E.2d 765, 767 (1995)).

Here, assuming, without deciding, that the evidence proved defendant had been driving the car while intoxicated at the time of the collision, it establishes little else. The record does not disclose the time of the accident, the manner in which defendant drove the car, his blood alcohol level, the road conditions, weather, traffic controls, or other circumstances probative of a Code § 46.2-852 violation. Reckless driving is not a status offense, and defendant cannot be convicted upon “speculation and conjecture as to what caused [him] to lose [27 Va.App. 725] control of the car.” Powers, 211 Va. at 389, 177 S.E.2d at 630. Thus, under the instant facts, we find the evidence insufficient to support a conviction for reckless driving. 2

II. Habitual Offender Endangerment

Code § 46.2-357(B)(2) elevates driving by an habitual offender from a misdemeanor to a felony when “such driving … of itself endangers the life, limb, or property of another,” Code § 46.2-357 (emphasis added), “language virtually identical to that found in the statute defining reckless driving.” Bishop, 20 Va.App. at 211, 455 S.E.2d at 767; Code § 46.2-852. Hence, we also find the evidence insufficient to support a finding of felonious habitual offender endangerment and reverse the conviction. However, because the record clearly establishes that defendant violated Code § 46.2-357(B)(1), the misdemeanor offense, we remand for further proceedings, if the Commonwealth be so advised. Gorham v. Commonwealth, 15 Va.App. 673, 678-79, 426 S.E.2d 493, 497 (1993).

Reversed and remanded.

—————

1 Defendant was found not guilty of driving under the influence by the general district court. Although evidence of intoxication was presented during the instant trial for reckless driving, the record does not disclose defendant’s blood alcohol content, and the trial court did not find that he was intoxicated either at the time of the accident or arrest.

2 The Commonwealth mistakenly relies upon Kennedy v. Commonwealth, 1 Va.App. 469, 339 S.E.2d 905 (1986), as support for the inference that proof of defendant’s intoxication sufficiently explained the accident. In Kennedy, the evidence clearly supported the inference that the accused “fell asleep at the wheel,” resulting in a collision. Id. at 472, 339 S.E.2d at 907. Manifestly, driving a vehicle while sleeping evinces the disregard for the life, limb and property contemplated by Code § 46.2-852.

[ Back to top ]

Virginia reckless driving charges resulting from passing a stopped school bus

§ 46.2-859. Passing a stopped school bus; prima facie evidence – A person is guilty of reckless driving who fails to stop, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children, the elderly, or mentally or physically handicapped persons, and to remain stopped until all the persons are clear of the highway, private road or school driveway and the bus is put in motion. The driver of a vehicle, however, need not stop when approaching a school bus if the school bus is stopped on the other roadway of a divided highway, on an access road, or on a driveway when the other roadway, access road, or driveway is separated from the roadway on which he is driving by a physical barrier or an unpaved area. The driver of a vehicle also need not stop when approaching a school bus which is loading or discharging passengers from or onto property immediately adjacent to a school if the driver is directed by a law-enforcement officer or other duly authorized uniformed school crossing guard to pass the school bus. This section shall apply to school buses which are equipped with warning devices prescribed in § 46.2-1090 and are painted yellow with the words “School Bus” in black letters at least eight inches high on the front and rear thereof. Only school buses which are painted yellow and equipped with the required lettering and warning devices shall be identified as school buses.

[ Back to top ]

Virginia reckless driving charges resulting from overtaking or passing an emergency vehicle

§ 46.2-829. Approach of law-enforcement or fire-fighting vehicles, rescue vehicles, or ambulances; violation as failure to yield right-of-way – Upon the approach of any emergency vehicle as defined in § 46.2-920 giving audible signal by siren, exhaust whistle, or air horn designed to give automatically intermittent signals, and displaying a flashing, blinking, or alternating emergency light or lights as provided in §§ 46.2-1022 through 46.2-1024, the driver of every other vehicle shall, as quickly as traffic and other highway conditions permit, drive to the nearest edge of the roadway, clear of any intersection of highways, and stop and remain there, unless otherwise directed by a law-enforcement officer, until the emergency vehicle has passed. This provision shall not relieve the driver of any such vehicle to which the right-of-way is to be yielded of the duty to drive with due regard for the safety of all persons using the highway, nor shall it protect the driver of any such vehicle from the consequences of an arbitrary exercise of such right-of-way. Violation of this section shall constitute failure to yield the right-of-way; however, any violation of this section that involves overtaking or passing a moving emergency vehicle giving an audible signal and displaying activated warning lights as provided for in this section shall constitute reckless driving, punishable as provided in § 46.2-868.

[ Back to top ]

Virginia reckless driving charges resulting from racing

This is one of the most serious forms of reckless driving accusations in Virginia. If convicted of reckless driving because of racing, the court will impose a minimum driver’s license suspension of not less than six months in addition to the traditional Virginia reckless driving potential penalties such as jail time and steep Virginia reckless driving fines.

§ 46.2-865. Racing; penalty – Any person who engages in a race between two or more motor vehicles on the highways in the Commonwealth or on any driveway or premises of a church, school, recreational facility, or business property open to the public in the Commonwealth shall be guilty of reckless driving, unless authorized by the owner of the property or his agent. When any person is convicted of reckless driving under this section, in addition to any other penalties provided by law the driver’s license of such person shall be suspended by the court for a period of not less than six months nor more than two years. In case of conviction the court shall order the surrender of the license to the court where it shall be disposed of in accordance with the provisions of § 46.2-398.

Sometimes Virginia reckless driving charges, including those associated with racing can be reduced to improper driving, a traffic infraction. This resolution is only available when the degree of negligence is slight.

JAMES EDWARD BAYNE
v.
COMMONWEALTH OF VIRGINIA.

Record No. 2395-04-3.

Court of Appeals of Virginia, Salem.

March 28, 2006.

Appeal from the Circuit Court of the City of Staunton, Humes J. Franklin, Jr., Judge.

Frankie C. Coyner for appellant.

(Judith W. Jagdmann, Attorney General; Josephine F. Whalen, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.

Present: Judges Benton, Clements and Kelsey,

MEMORANDUM OPINION*

JUDGE JAMES W. BENTON, JR.

The sole issue to be decided on this appeal is whether the evidence was sufficient to prove James Edward Bayne guilty of improper driving as proscribed by Code § 46.2-869. We hold that it was.

I.

Police Officer Chad Nestor was parked in his police cruiser at approximately 11:00 p.m. when he heard a “very loud” exhaust and then noticed two cars accelerating on a city street side by side. Officer Nestor described further his initial observation:

They were both side by side as they left through the intersection when I looked up. They were accelerating — you could tell that they weren’t what you call normally pulling out of the — from the light, like a normal person would drive from the intersection. They were neck and neck going as fast — really fast going down towards downtown.

Page 2

Though he was not certain of the cars’ actual speeds, Officer Nestor believed that both cars were traveling in excess of the posted 35 miles-per-hour speed limit.

Officer Nestor followed the cars and lost sight of them as they “rounded [a] turn.” When he saw the cars again, one car had accelerated past the other. Officer Nestor testified that he had to accelerate “pretty good” to catch the cars. When he did, he directed the lead car to stop in a parking lot, continued until he caught the next car, and directed the driver of the second car to the parking lot where the other car waited. Officer Nestor obtained identifications from both drivers. James Edward Bayne was the driver of the first car Officer Nestor stopped. When he asked Bayne to explain what he was doing, Bayne said that he was “just playing around.” Officer Nestor issued a summons to Bayne for racing, a reckless driving offense in violation of Code § 46.2-865.

Bayne testified he was driving a car his brother had purchased earlier that day and he was driving it for the first time. Bayne recalled that he was traveling approximately 35 to 40 miles per hour when he approached the area where Officer Nestor was parked, but said he could not “quite remember [his speed].” He testified that he thought he slowed a bit when he saw the officer’s car and that he and the other driver, whom he denied knowing, both stopped at an intersection near the lot in which Officer Nestor was parked. Bayne denied having a loud muffler on his car and speeding away when the traffic light changed. He also denied making any statements to Officer Nestor.

The trial judge found that the two cars were moving fast down the city street “side by side,” and he accepted as true the officer’s testimony that Bayne said he was fooling around. The judge convicted Bayne of improper driving and imposed a fine.

Page 3

II.

Code § 46.2-865, the statute charged in the summons, provides in part that “[a]ny person who engages in a race between two or more motor vehicles on the highways . . . shall be guilty of reckless driving.” The statute proscribing improper driving provides as follows:

Notwithstanding the foregoing provisions of this article, upon the trial of any person charged with reckless driving where the degree of culpability is slight, the court in its discretion may find the accused not guilty of reckless driving but guilty of improper driving . . . . Improper driving shall be punishable as a traffic infraction punishable by a fine of not more than $500.

Code § 46.2-869. To sustain a conviction for improper driving, the evidence must prove guilt beyond a reasonable doubt.

Bayne notes that “he was not charged with speeding.” He argues that Officer Nestor could not testify with certainty about the speed of the cars and, therefore, that no evidence proved his driving endangered life, limb, or property. The Commonwealth argues that the manner and circumstances in which Bayne operated the car proved he drove improperly.

Officer Nestor testified the posted speed was 35 miles per hour. He also testified that Bayne’s speed was “really fast” based on his observation of Bayne’s car and his pursuit to stop the cars.

“An estimate of the speed at which an automobile was moving at a given time is generally viewed as a matter of common observation rather than expert opinion, and it is accordingly well settled that any person of ordinary experience, ability, and intelligence having the means or opportunity of observation, whether an expert or nonexpert, and without proof of further qualification may express an opinion as to how fast an automobile which came under his observation was going at a particular time . . . . Speed of an automobile is not a matter of exclusive knowledge or skill, but anyone with a knowledge of time and distance is a competent witness to give an estimate; the opportunity and extent of observation goes to the weight of the testimony.”

Page 4

Greenway v. Commonwealth, 254 Va. 147, 152, 487 S.E.2d 224, 227 (1997) (quoting Moore v. Lewis, 201 Va. 522, 525, 111 S.E.2d 788, 790 (1960) (citations omitted)).

The evidence that the trial judge accepted to be true was the officer’s testimony that the cars moved away from the traffic light “accelerating . . . neck and neck going . . . really fast.” The quality of the officer’s observations was a matter of credibility. Greenway, 254 Va. at 152, 487 S.E.2d at 227. In addition to this evidence of unusual speed by two cars accelerating from a stopped position, the evidence also proved Bayne acknowledged to the officer that he was “just playing around.”

The trial judge was not required to accept as credible Bayne’s testimony that he saw the officer’s car in the parking lot and, therefore, did not speedily drive from the traffic light or that he did not tell the officer he was engaged in frivolity with the other driver. This was a credibility determination that properly rests with the trial judge as the fact finder. Sawyer v. Commonwealth, 43 Va. App. 42, 53, 596 S.E.2d 81, 86 (2004) (holding that we defer to the fact finder’s determination that the witness’ self-serving testimony is not worthy of belief). “Where the trier of fact believes a witness has knowingly testified falsely in any material fact, he has a right to give the testimony such weight and credit as in his opinion it was entitled.” Kennedy v. Commonwealth, 1 Va. App. 469, 472, 339 S.E.2d 905, 907 (1986). The trial judge resolved the conflicts in the evidence against Bayne.

Bayne argues that the conviction was based on speculation and failed to satisfy the standard announced Bacon v. Commonwealth, 220 Va. 766, 263 S.E.2d 390 (1980). We disagree. In Bacon, the defendant’s explanation of the events that led to a conviction for improper driving was “not contradicted.” 220 Va. at 768, 263 S.E.2d at 391. The defendant testified that he “was forced off the highway by another vehicle . . . [and] was confronted with a sudden emergency that was not caused by his own negligence.” Id. Reversing the conviction for

Page 5

improper driving, the Supreme Court held that “the mere fact that an accident happened . . . does not give rise to an inference . . . of improper driving.” Id. at 769, 263 S.E.2d at 392. In view of the uncontradicted evidence, the conviction in Bacon was supported only by “speculat[ion] . . . that [the accident] was due to excessive speed, to inattention by the driver, or to alcohol.” Id.

In this case, however, Officer Nestor’s testimony was credible evidence that the speed at which Bayne was traveling was improper under the circumstances. The officer’s testimony of the manner in which the cars quickly accelerated from the traffic light, driving side-by-side and the evidence of Bayne’s admission of “playing around” while he was accelerating and driving beside the other car were sufficient to prove that the manner and circumstances of Bayne’s driving conduct was unsafe. See Hale v. Commonwealth, 23 Va. App. 587, 591, 478 S.E.2d 710, 711-12 (1996) (holding that improper driving includes failure to operate a vehicle in a safe manner and under control). We hold that this evidence proved beyond a reasonable doubt improper driving.

For these reasons, we affirm the conviction.

Affirmed.

[ Back to top ]

Virginia reckless driving charges resulting from driving two abreast in a single lane

§ 46.2-857. Driving two abreast in a single lane – A person shall be guilty of reckless driving who drives any motor vehicle, including any motorcycle, so as to be abreast of another vehicle in a lane designed for one vehicle, or drives any motor vehicle, including any motorcycle, so as to travel abreast of any other vehicle traveling in a lane designed for one vehicle. However, this section shall not apply to any validly authorized parade, motorcade, or motorcycle escort, nor shall it apply to a motor vehicle traveling in the same lane of traffic as a bicycle, electric personal assistive mobility device, electric power-assisted bicycle, or moped.

[ Back to top ]

Virginia reckless driving charges resulting from passing two vehicles abreast

§ 46.2-856. Passing two vehicles abreast – A person shall be guilty of reckless driving who passes or attempts to pass two other vehicles abreast, moving 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. This section shall not apply, however, to a motor vehicle passing two other vehicles when one or both of such other vehicles is a bicycle, electric personal assistive mobility device, electric power-assisted bicycle, or moped; nor shall this section apply to a bicycle, electric personal assistive mobility device, electric power-assisted bicycle, or moped passing two other vehicles.

[ Back to top ]

Virginia reckless driving charges resulting from failing to give proper signal

§ 46.2-860. Failing to give proper signals – A person shall be guilty of reckless driving who fails to give adequate and timely signals of intention to turn, partly turn, slow down, or stop, as required by Article 6 (§ 46.2-848 et seq.) of this chapter.

[ Back to top ]

Virginia reckless driving charges resulting from failure to yield right of way when entering highway

§ 46.2-863. Failure to yield right-of-way – A person shall be guilty of reckless driving who fails to bring his vehicle to a stop immediately before entering a highway from a side road when there is traffic approaching on such highway within 500 feet of such point of entrance, unless (i) a “Yield Right-of-Way” sign is posted or (ii) where such sign is posted, fails, upon entering such highway, to yield the right-of-way to the driver of a vehicle approaching on such highway from either direction.

[ Back to top ]

Virginia reckless driving charges resulting from an overloaded vehicle as to obstruct or interfere with the driver’s control

§ 46.2-855. Driving with driver’s view obstructed or control impaired – A person shall be guilty of reckless driving who drives a vehicle when it is so loaded, or when there are in the front seat such number of persons, as to obstruct the view of the driver to the front or sides of the vehicle or to interfere with the driver’s control over the driving mechanism of the vehicle.

[ Back to top ]

Virginia reckless driving charges resulting from passing another vehicle at a railroad grade crossing

§ 46.2-858. Passing at a railroad grade crossing – A person shall be guilty of reckless driving who overtakes or passes any other vehicle proceeding in the same direction at any railroad grade crossing or at any intersection of highways unless such vehicles are being operated on a highway having two or more designated lanes of roadway for each direction of travel or unless such intersection is designated and marked as a passing zone or on a designated one-way street or highway, or while pedestrians are passing or about to pass in front of either of such vehicles, unless permitted so to do by a traffic light or law-enforcement officer.

[ Back to top ]

Virginia reckless driving charges resulting from driving too fast for traffic conditions

§ 46.2-861. Driving too fast for highway and traffic conditions – A person shall be guilty of reckless driving who exceeds a reasonable speed under the circumstances and traffic conditions existing at the time, regardless of any posted speed limit.

[ Back to top ]

Virginia reckless driving charges resulting from improper brakes or a vehicle not under proper control

§ 46.2-853. Driving vehicle which is not under control; faulty brakes – A person shall be guilty of reckless driving who drives a vehicle which is not under proper control or which has inadequate or improperly adjusted brakes on any highway in the Commonwealth.

[ Back to top ]

Our Virginia reckless driving attorneys have handled hundreds of reckless driving tickets in Virginia. We have an impressive track record of accomplishment in reckless driving ticket defense and can provide you with representation.

Contact a Virginia reckless driving attorney.

Virginia (VA) criminal defense, divorce, child custody, reckless driving, dui and federal court attorney representing clients throughout Virginia. Some of the jurisdictions served include:

Henrico County VA, Richmond City, Chesterfield County VA, Hanover County VA, Petersburg County VA, Fairfax County, Prince William County, Hopewell, Petersburg, Dinwiddie, Quantico, Virginia Beach VA, Norfolk, Chesapeake, Fredericksburg, Stafford, Spotsylvania VA, Hampton Roads, Newport News, Hampton, Williamsburg, Amelia, Powhatan, Goochland, Louisa, Manassas VA, Woodbridge, Charles City, James City, Gloucester, Tidewater, Portsmouth, Shenandoah, Prince George, Sussex, New Kent, West End of Richmond, Glen Allen, Federal Court for the Eastern District of Virginia (Richmond, Alexandria, Norfolk, and Newport News Divisions). Continue reading

Posted in Traffic Cases | Tagged , , , , , , , , , , , , , , | 5 Comments