RECENT BLOG POSTS
Virginia’s Move Over Law
Photo by Gene Gallin on Unsplash Drivers in Virginia should be aware of Virginia’s Move Over Law which was written to protect police officers. Virginia Code §46.2-921.1 explains that a driver must move over a lane when passing a trooper or another law enforcement officer’s stationary vehicle when the vehicle is "displaying a flashing, blinking, or alternating blue, red, or amber light or lights." The law was expanded in July of 2010 to apply to other emergency response vehicles, like ambulances and tow trucks, as well as highway maintenance vehicles. The code section explains that if "changing lanes would be unreasonable or unsafe", the driver should "proceed with due caution and maintain a safe speed for highway conditions." I interpret this to mean that you...
SCOTUS Approves of a Traffic Stop Based on Anonymous 911 Tipster
Photo by Alexandre Boucher on Unsplash On April 22, 2014, the United States Supreme Court determined that an anonymous tip from a 911 caller alleging a traffic violation may be enough to establish reasonable articulable suspicion for a law enforcement officer to perform a traffic stop. The Court's ruling in Prado Navarette v. California, 572 U.S. ____ (2014), a 5-4 decision, will be sure to impact DUI and other traffic stop cases. Unfortunately, this case expands police powers and infringes on our freedom to come and go without police interference. In this case, a law enforcement officer responded to a dispatcher who relayed a tip from a 911 caller reporting the make, model, and license plates of a car that "ran the reporting party off the roadway." This officer spotted the car and...
Collateral Attack on a Driving Under a Suspended License Charge to Avoid Jail
(July 1, 2020 Update: Virginia Law will no longer require mandatory jail time for a 3rd or Subsequent Driving Under Suspended Offense) A judge has a lot of discretion in determining the punishment for driving with a suspended license. As a class 1 misdemeanor, a judge can sentence a driver with jail time of up to a year and a fine of up to $2,500. However, a third driving under suspension (DUS) conviction is particularly unique. Virginia Code § 46.2-301 explains that in regards to a DUS conviction, "[a] third or subsequent offense occurring within a 10-year period shall include a mandatory minimum term of confinement in jail of 10 days." Photo by Matthew Henry on Unsplash There may be defenses to a driving under suspension charge that may allow a driver to be found not guilty,...
What Constitutes “Operating” a Vehicle for DUI/DWI in Virginia?
Virginia Code § 18.2-266 makes it unlawful for any person to "drive or operate any motor vehicle... while such person is under the influence of alcohol." If you were charged with a DUI and were not driving at the time of your police encounter, it is very important to determine if the Commonwealth can prove that you were "operating" a motor vehicle. Photo by Kishor on Unsplash In Enriquez v. Commonwealth, the Court of Appeals of Virginia explained that "operating" a motor vehicle means that you have actual physical control of the vehicle. The Court explained that it was making a rule that "when an intoxicated person is seated behind the steering wheel of a motor vehicle on a public highway and the key is in the ignition switch, he is in actual physical control of the vehicle...
Getting a Restricted Virginia Driver’s License After an Out of State DUI
If you possess a Virginia Driver's License and get a DUI conviction out-of-state, you may be in for a surprise. Following a driving while intoxicated or DUI conviction in another state, the Virginia DMV will automatically suspend a license for one year when they receive notice of an out-of-state DUI conviction. Virginia can be harsher on you than the state in which you received a DUI. For example, if Florida convicts you of a DUI and suspends your license there for 6 months, the Virginia DMV has no problem with suspending your license for one year. Photo by Matt Duncan on Unsplash To get a restricted license, you would need to petition the court in the jurisdiction where you reside for a restricted license. A restricted license is very limited. You can not even drive to get...
Driving While Intoxicated Does Not Equal Reckless Driving
I have had clients charged by police officers with Driving While Intoxicated, that received a "wet reckless" disposition from the General District Court judge when we kept the BAC certificate out under the 3 hour rule. While this was a good result, we recommended to our client that he appeal the result and take his case to trial in the Circuit Court. My client gets a de novo or brand new trial in the Circuit Court. On appeal, the Circuit Court considers whether the evidence was sufficient to find my client guilty of reckless driving, not DUI, since the charge was already reduced to reckless driving in the General District Court. In the Circuit Court, we've had clients get a dismissal of their reckless driving conviction based on the logic below. Photo by Clark Van Der Beken on...
Reckless Driving in Virginia and CDL holders
Photo by Riley Crawford on Unsplash If you possess a Commercial Driver's License (CDL), Virginia law is extra strict on you. For a person with a regular license, the General District Court or Circuit Court may require you to go to a driver improvement clinic (driving school), to receive a reduction, dismissal, or deferred finding on your charge. For example, if you were charged with reckless driving, a judge may be able to punish you by sending you to driving school, and allow you to get your charge reduced to "improper driving" if you comply with his terms. However, CDL holders are not so lucky. Virginia Code § 46.2-505 states that "... no court shall, as a result of a person's attendance at a driver improvement clinic, reduce, dismiss, or defer the conviction of...
How My Client Avoided a DUI conviction with a .14 BAC (Under the 3 Hour Rule)
Photo by Jon Tyson on Unsplash Last Friday, I had a client's whose DUI charge in Norfolk General District Court resulted in a "wet reckless" conviction, a great win for my client. (While this was a win, we appealed the reckless driving conviction and in the Circuit Court, the prosecutor dropped the reckless driving charge because of this case law.) Here are the relevant facts of his case: My client and his vehicle were in a ditch when the police officer found him. My client admitted to the officer that he was the driver of the vehicle and told the officer that he drank some alcohol about 1.5 to 2 hours before the accident occurred. The officer forgot to ask my client when the accident occurred. (Which reminds me, don't talk to police!) According to the officer, my client failed the...
What is a “Wet Reckless” Outcome in Virginia?
Wet reckless is the term used by Virginia traffic defense attorneys when a defendant is found guilty of reckless driving where alcohol is involved. This happens most where a defendant is charged with a DUI, but in the final disposition (either by plea agreement or after a trial), the judge finds the defendant guilty of reckless driving and imposes penalties similar to those in a DUI conviction. A prosecutor may be willing to offer a plea agreement for a wet reckless outcome where it may be hard to prove a defendant's blood alcohol level with certainty. Photo by Ashwini Chaudhary on Unsplash A wet reckless conviction is a reckless driving conviction, which does not carry the stigma that a DUI conviction has, even if both offenses are classified as misdemeanors. There is not a Code Section...
Reckless Driving by Speed in Virginia
Photo by Ludovic Charlet on Unsplash What will get you a speeding ticket in most states may land you a class 1 misdemeanor for reckless driving in Virginia. Recently Dodgers outfielder Yasiel Puig was stopped by a highway patrol officer in Florida for driving 110 mph in a 70-mph zone and charged with reckless driving. Prosecutors in Florida decided to drop the reckless driving charge after review because they determined that on the morning of the incident, traffic was "moderate to light," and the weather was clear and the roads were dry. According to the Florida prosecutor, "Puig wasn't observed weaving in and out of traffic or losing control of his vehicle, was sober and had a valid Florida driver's license." While I strive to point out any helpful traffic conditions and the positives...