What Defenses Don’t Work?

By Andrew Flusche, Esq.

By now you’ve probably read a lot about your reckless driving charge, and you may have heard defense ideas from friends and family as well. Here are a few mythical defenses that usually won’t matter in court. Of course every case is different, but these don’t work often in my experience.

If the officer doesn’t show up, we win!

This might be the most common myth I hear. It comes up almost every day. In some states, this might be true. However, in Virginia, this isn’t an automatic winner.

The officer normally has to be at court as the Commonwealth’s witness for your case. But in most courts, the officer has one date per month where all his cases will be heard. That makes it easier for him to juggle his patrol duties and court schedule.

If the officer doesn’t show up, most likely it will be due to a legitimate excuse. Everyone falls ill occasionally or has sudden family emergencies. And police officers have emergencies and unexpected calls due to their duties. In most courts, if an officer notifies the court with an excuse like any of these, his cases will simply be continued to his next court date. Not a win.

In a few rare instances, officers do forget or neglect court. If they don’t show up and don’t call the court, I certainly argue to the judge that the case should be dismissed. In those rare circumstances, the judge might agree. However, I have to emphasize that this doesn’t happen often, and the judge still has the discretion to continue the case to another date.

The officer didn’t stop everyone

I’ve heard many people argue this in court. Just the other day in Spotsylvania a guy was arguing that the car next to him was speeding too.

Unfortunately, it doesn’t matter. All that matters is if the officer can testify that he clocked your car (and all the other elements of the case, of course). He doesn’t have to stop all speeders, and it would be impossible to even attempt that.

One of our local judges has responded to this argument by asking something like, “When you go fishing, do you catch all the fish in the lake?”

My car can’t go that fast

This argument could matter, IF you could prove it. The officer’s testimony that his equipment read X speed presents the basic case against you. We can argue against that evidence with our own proof. If we could prove that your vehicle physically cannot go the alleged speed, that would be pretty convincing evidence that the officer’s equipment must be wrong in your case.

However, how can we prove it? Your testimony wouldn’t be enough for most judges. A printout from the internet wouldn’t be admissible in court. We would really need an expert witness to testify about your particular vehicle. That could get pricey. In many cases, this argument simply won’t help us.

It wasn’t my car

In heavy traffic, it’s reasonable to question if the officer clocked the correct vehicle. However, it’s a hard argument to win.

In most cases, the officer is going to come into court and swear under oath that he clocked or paced a certain
vehicle. He’ll testify that he then stopped the car that he was targeting, and that he identified you as the driver with your driver’s license. If he can say all that under oath, that’s enough to establish the identity of the vehicle that’s alleged to have committed the violation.

This is definitely an issue to examine closely, but it honestly doesn’t normally help. The officer’s testimony that he got the right car is usually sufficient for the judge.

My speedometer read 70

I’m in traffic court most mornings each week. It always surprises me how many people try this defense: “But, Your Honor, I swear my speedometer only read 70!”

Most of the time the judge’s next question is: “Did you get your speedometer calibrated or checked?” And of course the defendant typically says “no.” The judge then convicts the defendant of speeding or reckless driving.

Why doesn’t that work?

It all goes back to the basic elements for a reckless driving by speed case. If you’re charged with reckless driving or speeding in Virginia, there are a few things the Commonwealth must prove to make a basic case against you:

    1. The officer targeted your vehicle
    2. The officer’s radar / laser / speedometer read the alleged speed
    3. The measuring device was properly calibrated

There are lots of other little elements they have to prove, but this is the basic case. Most judges defer to the officer’s evidence when he’s taken the oath and sworn that he clocked you.

You can certainly try to cast doubt upon the officer’s basic case. That’s the design of our criminal justice system. But to fight the exact speed the officer claims, you need more than your word that the speedometer read lower. A notarized calibration report for your speedometer can certainly be helpful to prove that, depending upon the judge. That’s why many judges ask the defendant if they had their speedometer checked when this issue arises.

If you want to argue about what your speedometer read, a calibration is honestly a critical step.

I was going with the flow

I hear it all the time: “I was just going with the flow of traffic.” I don’t mean to be crass, but that’s not going to matter. We have a lot of potential arguments and tactics to fight speeding and reckless driving charges, but this isn’t one of them.

Virginia law prohibits exceeding the speed limit. There’s no exception for “going with the flow.”

What does that even mean? Was everyone going 100 miles per hour? Typically not. On Interstate 95 in the Fredericksburg / Spotsylvania / Stafford area, most people aren’t even going 85 mph.

Maybe there are some other cars nearby who are traveling in the 80s. And maybe even a few cars driving in the 90s. But there are always cars driving closer to the speed limit.

This is a classic excuse of “everyone else was doing it.” That doesn’t work for children, and it doesn’t work for
speeding or reckless driving in Virginia. The officer and the judge don’t really care what other people were doing. They care if you were exceeding the speed limit.

I had to pee

When you’ve been in traffic court a lot, you’ve heard just about everything. You’d be amazed at how many people claim they were speeding because they had to pee.

Needless to say, this isn’t a legal defense. It simply won’t get you anywhere in the average case, especially if the officer testifies that you passed several exits with restrooms.

The only way this argument might help is if there’s a special medical condition involved. Then some judges might consider it as mitigation for sentencing purposes.

Next: What else can we do…?