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Reckless Driving Speed Virginia Improper Driving 46.2-862 Fairfax County Prince William Loudoun

Chibikom v. Commonwealth, 54 Va. App. 422 (2009)

Only the trial judge, or the prosecutor before the verdict was rendered, had the prerogative to reduce a reckless driving charge to improper driving under § 46.2-869.

Defendant was driving on a highway in the Commonwealth in excess of eighty miles per hour. As a result, defendant was issued a summons for reckless driving by speed. On June 11, 2008, the trial court conducted a trial on the charge. At the close of the evidence, the Commonwealth proffered a jury instruction instructing the jury that in order to find Defendant guilty of reckless driving by speed, the jury had to find beyond a reasonable doubt that defendant was traveling on a public highway and that she was traveling in excess of eighty miles per hour. Defendant objected to the Commonwealth's instruction on the ground that it failed to include the lesser-included offense of improper driving under Code § 46.2-869. Defendant proffered a jury instruction containing the reckless driving by speed offense under Code § 46.2-862. In addition, her proposed instruction included language closely tracking Code § 46.2-869, that is, that anyone found guilty of reckless driving, but with slight culpability, could instead be found guilty of improper driving.

For a defendant to be found guilty of reckless driving by speed under Code § 46.2-862, the Commonwealth must prove that the defendant was driving on a highway in the Commonwealth, and was driving "(i) at a speed of twenty miles per hour or more in excess of the applicable maximum speed limit or (ii) in excess of eighty miles per hour regardless of the applicable maximum speed limit." Code § 46.2-869, the improper driving statute, provides in relevant part, that "[n]otwithstanding 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." In addition, "an attorney for the Commonwealth may reduce a charge of reckless driving to improper driving at any time prior to the court's decision . . . ." Code § 46.2-869. Improper driving requires an additional finding of slight culpability, an element excluded from the reckless driving by speed statute. Thus, we conclude that improper driving is not a lesser-included offense of reckless driving by speed. The plain and unambiguous reading of the improper driving statute makes clear that authority rests with the trial judge and not the jury to make the lesser degree of culpability determination. In the alternative, an attorney for the Commonwealth may reduce a reckless driving charge in Virginia to improper driving at any time prior to the court's decision. Thus, only the trial judge, or the prosecutor before the verdict is rendered, has the prerogative to reduce a reckless driving charge to improper driving under Code § 46.2-869.

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content.

About the Author

The SRIS Law Group Virginia reckless driving lawyers defend clients charged with any type of reckless driving ticket in Virginia. The SRIS Law Group have offices in Fairfax, Richmond, Virginia Beach, Lynchburg, Loudoun County & Prince William County.