texting while drivingNo, texting while driving is not reckless driving per se.

I have written previously about the change in Virginia’s texting while driving law, which was made a primary offense this year. In June of 2013, Attorney General Ken Cuccinelli wrote an opinion, explaining that texting while driving (Va Code § 46.2-1078.1) and reckless driving (Va Code § 46.2-852) are offenses under two separate Code Sections, each requiring proof of different elements. In other words, you can be guilty of violating one statute without being guilty of violating the other. 

The Attorney General’s opinion is not binding on the courts but seeks to clarify what current law states. The opinion explains that the mere operation of a handheld personal communication device “while driving, regardless of a violation of § 46.2-1078.1, would not necessarily result in a reckless driving conviction.” – Opinion 13-028.

Reckless driving has its own elements and the burden of proof must be met to that offense. The mere happening of an accident or use of a hand held personal communication device is not enough to support a conviction of reckless driving. To prove reckless driving under Va Code § 46.2-852, the Commonwealth must establish that the defendant drove “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…”

Conversely, you can be found guilty of reckless driving without being found guilty of texting while driving. The Attorney General’s Opinion explains that if:

“a driver has his cell phone in the center console of his vehicle and he is staring at the cell phone’s screen which displays a GPS mapping program. The use of the cell phone in this manner would not violate § 46.2-1078.1 because § 46.2-1078.1 (B)(3) exempts such conduct. Adding additional hypothetical acts, imagine the driver runs a stop sign and causes an accident because he is not paying sufficient attention to the roadway. In this instance the driver could be charged with reckless driving. If the hypothetical is changed further such that the driver is looking at his phone and reading an email displayed on its screen at the time of the accident, the driver then could be charged and convicted of a violation of § 46.2-1078.1 and § 46.2-852, provided the Commonwealth is able to meet its burden of proof as to the elements of each offense to the satisfaction of the fact finder. The reckless nature of the driving is exactly the same in each hypothetical scenario, however, only in the final situation would the driver additionally violate § 46.2-1078.1.”

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