Reckless Driving Legal Primer

What is commonly referred to as Reckless Driving is actually a compilation of nineteen different laws. By far the two most commonly charged are 46.2-852 (Reckless general) and 46.2-862 (Reckless by speed). However, each one of these laws carries the same potential consequences, so this analysis will address each one individually.

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.

Important cases

–       Reckless driving is defined by the manner and circumstances under which a vehicle is operated, not in the act of operating the vehicle. Powers v. Commonwealth

–       It is the commonality of the underlying offending conduct, the continuous, uninterrupted operation of this motor vehicle, that invokes the preclusive effect of this section. Harris v. City of Virginia Beach

–       As used in this section the phrase reckless driving is not the same definition as when the phrase is used in tort law. Its use in criminal cases relates to a class of violations which the legislature has deemed harsher may penalties than exist with regards to violations of other provisions. Powers v. Commonwealth

–       As used in this section the phrase recklessly demonstrates a disregard for the safety and well being of others, and thereby jeopardizes the life, limb, or property of these other individuals. Powers v. Commonwealth

–       A violation of this section can only justify a manslaughter conviction if the behavior is so awful that it demonstrates a complete disregard for the safety of others in a manner likely to cause injury. All violations are not necessarily sufficient. Conrad v. Commonwealth

–       Driving an old car at a fast speed, while at the same time zig-zagging back and forth, over the objections of an occupant, is operating in a manner that satisfies the statute. Under those conditions, the behavior was sufficiently jeopardizing to be reckless driving. Saylor v. Commonwealth

–       The specific facts of this case justify a reckless driving conviction. In this case the Defendant drove over a hill at 55miles per hour, a speed fast for that stretch of highway. In addition the view over the top of the hill was limited. The defendant was familiar with the hill as he had traveled on it some times before. As the defendant was driving blindly over the hill he slammed his brakes and collided with a vehicle traveling in the opposite direction. Noland v. Folwer

–       Under this section a driver is required to slow down when reaching a populated area. Particularly under circumstances where children were likely to be playing. Where driver fails to keep his vehicle under sufficient control as to evade a potential sudden emergency, he is guilty of reckless driving as defined in this section.

–       Another example of violating this section is a circumstance where evidence showed that the Defendant’s vehicle was driven in the opposite lane of travel. Krizak v. W.C. Brooks and Sons

–       Conviction under this statute requires the driving behavior to take place on a highway. If the evidence shows that the road was not open to anyone other than those who lived on it, it was not a highway under the section. Moore v. Commonwealth

–       The increased chance of injury to life, limb, or property is what distinguishes a simple speeding ticket from reckless driving. The unique factors present in each case are what make the amount of danger relevant. Mayo v. Commonwealth

–       Just because an accident has taken place doesn’t automatically mean reckless driving has occurred. Powers v. Commonwealth. This is one of the most cited cases in reckless driving practice. Often police and even more so, Virginia State troopers will write a ticket based on whoever was at fault in an accident. This is improper logic. As this case clearly demonstrates a person has to have made some willful, dangerous act to be guilty of reckless driving. Sometimes an accident is just an accident.

–       Where two drivers approach and neither yield both are guilty of negligence Via v. Badanes.

–       Both DWI and Reckless convictions are valid even if for one instance, if the driver has violated both statutes. Hundley v. Commonwealth

–       Falling asleep while driving is negligence below the standard of ordinary care. Allowing oneself to doze off shows a lack of regard for life, liberty, and property of others. This driving behavior is sufficient to support a conviction. Kennedy v. Commonwealth.  This case also demonstrates how falling asleep can be Reckless. In Conrad v. Commonwealth the Defendant had been awake for more than 20 straight hours. He caught himself dozing off multiple times. The court thought it could assume that was sufficient behavior and the appeals court upheld that decision.

–       Reckless and improper driving are technically criminal violations. To sustain a conviction under either section requires the Commonwealth to prove their cases beyond a reasonable doubt. Bacon v. Commonwealth.

–       Crest v. Commonwealth is another case that addresses the facts necessary to sustain a conviction. Under that case, there was bad driving behavior before the accident, the Defendant wasn’t able to stop, and the vehicles were badly damaged. Crest v. Commonwealth

–       It is reckless to accelerate to merge if you know another driver is also attempting to accelerate to merge in front of you. Robinson v. Commonwealth

–       It is ok for an officer to stop a car without jurisdiction or justification. If the behavior cited is a separate and distinct offense that takes place after the unlawful stop.

–       Habitual offender, reckless driving, fail to stop, and attempting to elude are unique offenses and double jeopardy is not implicated if convictions arise out of the same behavior. Moore v. Commonwealth

–       Where the Commonwealth’s evidence leaves much to speculation and conjecture as to what cause the Defendant to lose control of the car, and the trial court cannot say that the evidence excludes every reasonable hypothesis of innocence and is consistent only with the quit of the change, the evidence is in sufficient to support the conviction of reckless driving within the meaning of this section. Hence reckless driving cannot be inferred from evidence that a car left the road and hit a tree. Powers v. Commonwealth.

–       Bacon v. Commonwealth supports the conclusion that just because an accident occurred doesn’t mean that it was necessarily reckless driving. Bacon v. Commonwealth

–       Intoxication may be a factor but it doesn’t automatically mean someone was driving recklessly. Where there is no driving behavior, reckless driving doesn’t exist. Hall v. Commonwealth.

–       It is not sufficient for a witness sees a vehicle, says it was going fast, and collides with another vehicle. Spencer v. City of Norfolk.

Conclusion

This statute makes a wide range of driving behavior illegal. By law, that behavior must be such that a reasonable person would know that the behavior by itself jeopardizes the life, limb, or property of others. Behavior found to be regulated under this section is distinct and is not subject to double jeopardy. So multiple convictions are possible if the behavior so warrants. Behavior that meets this statute may include: driving on the wrong side of the road, driving fast over a hill and getting into an accident, or falling asleep while driving. Obviously this list isn’t exhaustive and circumstances control every instance.

However, merely having alcohol on one’s breath or even intoxication doesn’t establish reckless driving in and of themselves. The crux of behavior addressed in the statue relates to actual driving behavior, not the mentality or statues of the driver.

Finally, sometimes an accident is just that. Reckless under 852 is a willful act subject to criminal definitions of intent. Without a further explanation for why the accident happened, a violation of this section cannot be sustained.

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.

Important cases

–       Driver who doesn’t keep his car under proper control fails his responsibility and is violation of this section. Meeks v. Hodges. Kennedy v. Commonwealth.

–       Double jeopardy doesn’t apply to Reckless and involuntary manslaughter. This is because they have elements exclusive to each other. Delawder v. Commonwealth.

–       The term proper is relative and not absolute. Voight v. Reber

–       A driver has a responsibility to repair or at least compensate for known vehicle defects. A conviction is sustainable where a driver ignored a known defect which later caused an accident. The defect in question was a steering problem. Kennedy v. Commonwealth.

46.2-854 Passing on or at the crest of a grade or on a curve.

A person shall be guilty of reckless driving who, while driving a vehicle, overtakes and passes another vehicle proceeding in the same direction, on or approaching the crest of a grade or on or approaching a curve in the highway, where the driver’s view along the highway is obstructed, except where the overtaking vehicle is being operated on a highway having two or more designated lanes of roadway for each direction of travel or on a designated one-way roadway or highway.

Important cases

–       The statute is designed to keep cars from hitting each other when they are approaching from opposite sides of a hill. Peteosky v. Bowman.

–       A person shall be guilty of reckless driving who, while driving a vehicle, overtakes and passes another vehicle proceeding in the same direction, on or approaching the crest of a grade or on or approaching a curve in the highway, where the driver’s view along the highway is obstructed, except where the overtaking vehicle is being operated on a highway having two or more designated lanes of roadway for each direction of travel or on a designated one-way roadway or highway.

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 numbers 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.

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.

An attorney general opinion from 2010 defines abreast under the common usage which is to mean side by side.

46.2-857 Driving two abreast in a single lane

A person shall be guilty of reckless driving who drives any motor vehicle so as to be abreast of another vehicle in a lane designed for one vehicle, or drives any motor vehicle so as to travel abreast of any other vehicle traveling in a lane designed for one vehicle. Nothing in this section shall be construed to prohibit two two-wheeled motorcycles from traveling abreast while traveling in a lane designated for one vehicle. In addition, this section shall not apply to (i) any validly authorized parade, motorcade, or motorcycle escort; (ii) a motor vehicle traveling in the same lane of traffic as a bicycle, electric personal assistive mobility device, electric power-assisted bicycle, or moped; nor shall it apply to (iii) any vehicle when lawfully overtaking and passing one or more vehicles traveling in the same direction in a separate lane.

There is only one relevant case, Barbour v. Commonwealth. In that case the defendant passed few stopped vehicles in a travel lane that was usually reserved for parking. The court found that was sufficient to support a conviction under this section.

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.

Important cases

–       The defendant quickly overtook a vehicle and consequently part of his peripheral vision was blocked. The court ruled he could still be found liable. Mills v. Wells.

–       Defendant was guilty where he changed lanes, but failed to properly return before entering an upcoming intersection. Loving v. Mason.

–       Even police are required to follow this law. Even when they are pursuing suspects. While v. Doe

46.2-859 Passing a stopped school bus

A person driving a motor vehicle shall stop such vehicle 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 shall remain stopped until all the persons are clear of the highway, private road or school driveway and the bus is put in motion; any person violating the foregoing is guilty of reckless driving. 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.

The testimony of the school bus driver, the supervisor of school buses or a law-enforcement officer that the vehicle was yellow, conspicuously marked as a school bus, and equipped with warning devices as prescribed in § 46.2-1090 is prima facie evidence that the vehicle is a school bus.

In 2011, a Fairfax Reckless Driving lawyer came up with a creative way to get a case dismissed under this section. The argument was widely dismissed, and is very unlikely to be successful any longer. The buses reason for the stop has to be to let kids off. This section doesn’t apply if the bus has stopped for another reason, even if a child happens to be getting off. County School Board v. Thomas.

As with all criminal charges every element must be proven beyond a reasonable doubt. Moore v. Commonwealth

 

 

46.2-860 Failing to give proper signal

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.

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.

This law does not apply to caution signs. Garst v. Obenchain

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 or (ii) in excess of eighty miles per hour regardless of the applicable maximum speed limit.

Important cases

–       Conviction valid where pace testimony established a speed of 70 miles per hour in a 45 mph zone. Savage v. Commonwealth

–       Conviction valid where pace established a 105 mile per hour speed. The pace was conducted over a one mile area and the officer was able to establish the accuracy of his cruiser’s speedometer.

–       Improper driving under 46.2-869 is a lesser included of Reckless general under 852 and not reckless by speed under 862. The judge accurately did not let that instruction get to the jury. Only judge of prosecutor are able to make that reduction. Chibikom v. Commonwealth

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.

This section does not create right of way. Perkins v. Carr

46.2-864 Reckless driving on parking lots

A person is guilty of reckless driving who operates any motor vehicle at a speed or in a manner so as to endanger the life, limb, or property of any person:

On any driveway or premises of a church, school, recreational facility, or business or governmental property open to the public; or

On the premises of any industrial establishment providing parking space for customers, patrons, or employees; or

On any highway under construction or not yet open to the public.

Defendant’s conviction valid where the amount of damage proved high rate of speed. The testimony of the Defendant could be ignored as incredible. Mehta v. City of Norfolk

 

46.2-865 Racing

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.

Racing is rarely charged because it requires the Commonwealth to prove the intent of both drivers. However, a conviction under this statute can be significant. In addition to a 6-24 month loss of license, a vehicle involved can be seized by the government.

46.2-865.1 Injuring another or causing death of another while engaged in a race

Any person who, while engaging in a race in violation of § 46.2-865 in a manner so gross, wanton and culpable as to show a reckless disregard for human life:

Causes serious bodily injury to another person who is not involved in the violation of § 46.2-865 is guilty of a Class 6 felony; or

Causes the death of another person is guilty of a felony punishable by a term of imprisonment of not less than one nor more than 20 years, one year of which shall be a mandatory minimum term of imprisonment.

Upon conviction, the court shall suspend the driver’s license of such person for a period of not less than one year nor more than three years, and shall order the surrender of the license to be disposed of in accordance with the provisions of § 46.2-398.

46.2-866 Racing; aiders or abettors

Any person, although not engaged in a race as defined in § 46.2-865, who aids or abets any such race, shall be guilty of a Class 1 misdemeanor.

46.2-867 Racing; seizure of vehicle

If the owner of a motor vehicle (i) is convicted of racing such vehicle in a prearranged, organized, and planned speed competition in violation of § 46.2-865, (ii) is present in the vehicle which is being operated by another in violation of § 46.2-865, and knowingly consents to the racing, or (iii) is convicted of a violation of § 46.2-865.1, the vehicle shall be seized and shall be forfeited to the Commonwealth, and upon being condemned as forfeited in proceedings under Chapter 22.1 (§ 19.2-386.1 et seq.) of Title 19.2, the proceeds of sale shall be disposed of according to law. Such sections shall apply mutatis mutandis.

The penalties imposed by these sections are in addition to any other penalty imposed by law.

46.2-868 Reckless driving; penalties

Every person convicted of reckless driving under the provisions of this article shall be guilty of a Class 1 misdemeanor.

Every person convicted of reckless driving under the provisions of this article who, when he committed the offense, (i) was driving without a valid operator’s license due to a suspension or revocation for a moving violation and, (ii) as the sole and proximate result of his reckless driving, caused the death of another, is guilty of a Class 6 felony.

 

46.2-868.1 Aggressive driving; penalties

A person is guilty of aggressive driving if (i) the person violates one or more of the following: § 46.2-802 (Drive on right side of highways), § 46.2-804 (Failure to observe lanes marked for traffic), § 46.2-816 (Following too closely), § 46.2-821 (Vehicles before entering certain highways shall stop or yield right-of-way), § 46.2-833.1 (Evasion of traffic control devices), § 46.2-838 (Passing when overtaking a vehicle), § 46.2-841 (When overtaking vehicle may pass on right), § 46.2-842 (Driver to give way to overtaking vehicle), § 46.2-842.1 (Driver to give way to certain overtaking vehicles on divided highway), § 46.2-843 (Limitations on overtaking and passing), any provision of Article 8 (§ 46.2-870 et seq.) of Chapter 8 of Title 46.2 (Speed), or § 46.2-888 (Stopping on highways); and (ii) that person is a hazard to another person or commits an offense in clause (i) with the intent to harass, intimidate, injure or obstruct another person.

Aggressive driving shall be punished as a Class 2 misdemeanor. However, aggressive driving with the intent to injure another person shall be punished as a Class 1 misdemeanor. In addition to the penalties described in this subsection, the court may require successful completion of an aggressive driving program.

This law was initially drafted to address road rage. The crux of this law is that someone who commits one of the enumerated offenses in response or relating to an attempt to bother another driver has committed a violation. In reality, the charge is a class 2 misdemeanor as opposed to a class 1 for standard reckless driving. Additionally, the law has the extra intent element which makes it harder to prove. Because of these difficulties the statue is charged relatively rarely.

46.2-869 Improper driving penalty

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. However, an attorney for the Commonwealth may reduce a charge of reckless driving to improper driving at any time prior to the court’s decision and shall notify the court of such change. Improper driving shall be punishable as a traffic infraction punishable by a fine of not more than $500.

This statute is frequently used in plea negotiations, but never charged on the street. The biggest advantage to a Defendant is that it is an infraction as opposed to a misdemeanor. Additionally it carries 3 points as opposed to six, and it will be removed from a driving record in three years as opposed to eleven.

Important cases

–       The Bacon logic applies to this statute as well in that the mere fact an accident occurred is insufficient to prove a violation. Bacon v. Commonwealth.

–       Defendant was guilty when she was one of two cars to quickly leave a light and engage in minor horseplay. Bayne v. Commonwealth

–       Defendant was guilty where he drove at night with bad eyesight and rolled through a stop sign and down a hill. Hale v. Commonwealth.

–       Improper not a lesser included of reckless by speed. Chibikom v. Commonwealth

RECKLESS DRIVING CONCLUSION

The law regulates and defines a large number of dangerous behaviors as reckless driving. The most commonly cited are any speed 20 miles or more over the limit, driving in a way to endanger life, limb, or property, racing, or driving dangerously as a result of road rage. There are many cases that further define what is and what isn’t punishable as reckless driving. These cases universally establish that a driver is responsible for keeping their car under control and protecting other driver’s from potentially dangerous or even deadly collisions on the nation’s highways.

The cases also establish that only actual, provable driving behavior is banned. Being drunk but driving appropriately is not illegal under this section (although obviously a separate crime in its own right.)

Finally an important take away is that an accident is not necessarily reckless driving. Accidents happen every day and are by definition an unintentional occurrence. There are traffic codes that are designed to regulate these behaviors. Reckless is an intentional act. Typically an accident is only reckless if the accident was caused by someone’s intentionally dangerous driving behavior. So if a car rear ends another car, simply because the driver misjudged the difference, that is insufficient to prove reckless

46.2-870 Maximum Speed limits generally

Except as otherwise provided in this article, the maximum speed limit shall be 55 miles per hour on interstate highways or other limited access highways with divided roadways, nonlimited access highways having four or more lanes, and all state primary highways.

The maximum speed limit on all other highways shall be 55 miles per hour if the vehicle is a passenger motor vehicle, bus, pickup or panel truck, or a motorcycle, but 45 miles per hour on such highways if the vehicle is a truck, tractor truck, or combination of vehicles designed to transport property, or is a motor vehicle being used to tow a vehicle designed for self-propulsion, or a house trailer.

Notwithstanding the foregoing provisions of this section, the maximum speed limit shall be 70 miles per hour where indicated by lawfully placed signs, erected subsequent to a traffic engineering study and analysis of available and appropriate accident and law-enforcement data, on: (i) interstate highways, (ii) multilane, divided, limited access highways, and (iii) high-occupancy vehicle lanes if such lanes are physically separated from regular travel lanes. The maximum speed limit shall be 60 miles per hour where indicated by lawfully placed signs, erected subsequent to a traffic engineering study and analysis of available and appropriate accident and law-enforcement data, on U.S. Route 29, U.S. Route 58, U.S. Route 360, U.S. Route 460, and on U.S. Route 17 between the town of Port Royal and Saluda where they are nonlimited access, multilane, divided highways.

Important Cases

–       Speeding under 46.2-878 (authority to set speed limits) is a lesser included of speeding under 46.2-870. Plotchan v. Commonwealth

–       A ticket with a false or inaccurate codes section provides sufficient notice of the allegation where it also states the speed alleged. Williams v. Commonwealth.

–       46.2-870 is not intended to make it illegal for a driver to be unable to stop within the range of view based on his vehicle’s lights when driving at night. Tunyam v. Aakins.

–       A driver does not have to be able to always stop within his range of vision. This behavior is not regulated under this section. Yates v. Potts.

–       Just because a speed limit is posted, a truck driver can still be cited if he drives at a manner and under circumstances that indicate the speed is dangerous. Brown v. Damron.

–       A driver is not necessarily not guilty of speeding simply because the speedometer on his vehicle fails to give an accurate reading of his vehicle’s speed. Williams v. Commonwealth.

–       Reckless driving and speeding are separate and unique offenses. While v. Commonwealth.

–       Even federal employees are required to follow state speed limits. Even if conducting official federal business. Hall v. Commonwealth.

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