Defenses for Beating Your
Reckless Driving Ticket

By Andrew Flusche, Esq.

how-to-beat-virginia-reckless-driving If you’re wondering how to get out of a reckless driving ticket in Virginia, you’re in the right place.

Reckless driving charges can be beat. The Commonwealth has to prove beyond a reasonable doubt that you committed the alleged violation.

Each piece of the offense can be used as a possible defense if the Commonwealth doesn’t present the necessary evidence.

Location

It sounds simple, but the Commonwealth has to prove that the offense took place in the correct county or city. In many cases, this is a formality, but not always.

Sometimes an incident may take place near the border between two localities, and it could be questionable exactly where the offense occurred.

Also, sometimes the officers make mistakes in their testimony. If they forget to testify that the incident occurred within the correct locality, we have a strong argument to have the judge dismiss the case completely.

Highway

The main reckless driving rules only apply on “highways.” That is a complicated legal term that means much more than the interstate highway. However, not every roadway counts.

I had a client in Stafford County who was involved in a minor accident in a subdivision. Her responsibility for the accident was fairly cut and dried, and she received a reckless driving ticket.

However, the road in question was part of a gated community, which made it a private road. Stafford County had not passed an ordinance to adopt the road as a legal “highway.” Due to that issue, I was able to get the charge dismissed!

Driving

To support a reckless driving charge, the Commonwealth has to prove that YOU drove the vehicle. In many cases, they officer simply testifies that he stopped the vehicle and identified the driver by his/her driver’s license.

However, the driving piece can occasionally be tricky for the Commonwealth to prove in accident cases, since the officer rarely observes the actual accident. Also, if someone stole your identity and incurred a ticket in your name, we’d certainly argue that you aren’t the person who committed the offense.

In one case my client swore to me that he wasn’t driving on the day in question. We checked the court paperwork, and the signature on the ticket didn’t match his signature. The trooper confirmed that my client wasn’t the driver he pulled over, and the case was dismissed.

Speed cases

Aside from the general elements of location, highway, and driving, reckless driving by speed charges have some specific potential defenses.

Speed limit

It may seem elementary, but the Commonwealth has the burden of proving the speed limit in question. Typically, that is straightforward, since Virginia law specifies the limits on many roads. However, that’s not always the case.

One of my clients was charged with reckless driving in a school zone. The school zone signs were 35 mph. But I argued to the judge that 35 isn’t the legal limit for a school zone, thus nullifying the signs. The judge ruled that the Commonwealth hadn’t met its burden of proving the speed limit and dismissed my client’s charge.

Radar / LIDAR calibrations

In any case where there’s a question of speed, whether you’re charged with speeding or reckless driving by speed, the Commonwealth has to prove that the device they used to measure your speed was calibrated and accurate on the day in question. And they have to prove it was calibrated within the past six months.

If the officer used a LIDAR gun, he should have a calibration certificate to show that the actual unit has been calibrated within six months prior to the stop. If he used a radar gun, he should have a calibration to show that his tuning forks were calibrated within that window.

The interesting thing about the statute and defending speed-related cases is that simply seeing a piece of paper that the officer claims is his certificate is not enough. The certificate has to meet the requirements in the statute to actually be able to prove that his device was accurate.

A traffic attorney should have the experience and knowledge to examine the officer’s certificates and spot deficiencies. For example, the certificate must say who actually performed the calibration, and the certificate itself must be an original or a proper copy. Sometimes these deficiencies are so subtle that an inexperienced attorney could even miss them.

Your speedometer’s calibration

Many “beat your ticket” books written by non-lawyers recommend calibrating your speedometer as a possible defense. I frankly don’t recommend it in every case because it’s not always helpful.

Having your speedometer calibrated attempts to show that even if the officer clocked you at X speed, you didn’t realize you were going that fast. But that doesn’t always work, since your speedometer might not be wrong. And not all judges will give you credit for a calibration.

Before you spend the money on an official calibration, you can do a quick accuracy test yourself with a GPS:

  1. Put a standalone GPS in your car.
  2. Set the GPS where it displays the current speed based on the GPS satellites.
  3. Drive around a little and keep an eye on the GPS and speedometer readings.
  4. If they consistently match, both gauges are probably showing the vehicle’s true speed.

If you decide to get a calibration, you must know how to read a calibration report. I’ve seen many people say their calibration is helpful when it’s actually the opposite. I’ve even seen defendants give the judge a calibration that shows their speedometer would’ve been reading higher than the officer alleges.

A typical calibration report is a notarized chart that shows the calibration machine’s known speed compared with the speedometer’s reading. The chart might look similar to this:

MachineSpeedometer
55 mph52 mph
60 mph57 mph
65 mph22 mph

 
That example shows the vehicle’s speedometer reading 3 mph lower than the actual travel speed of the car. That calibration would potentially be helpful in a reckless driving case.

In cases where your alleged speed falls on a borderline (like 80 mph) or if you truly believe your speedometer doesn’t read correctly, a calibration may be useful for your defense.

The GPS defense

This one’s my favorite!

I’ve seen people argue that their GPS showed a lower speed that the officer’s radar, and I’ve had many clients tell me that as well.

Unfortunately, I think the GPS defense fails more often than it works. But that’s because people don’t bring all the necessary proof to court.

To effectively use a GPS defense in traffic court, you need two things: 1. proof of the GPS speed readout at the time the police claim you were speeding, and 2. proof that the GPS was accurate.

The GPS defense can be argued successfully, however. I argued this defense for a reckless driving client who had the presence of mind to take a picture of his GPS trip summary right after being pulled over for reckless driving. It showed the maximum speed during the trip was lower than the officer’s radar reading. I had the client get his speedometer calibrated, and then I had him take pictures of the GPS and speedometer together to show that the GPS was reading accurately. The judge understood our argument and found that the defendant was only going the speed displayed as the GPS maximum speed.

General reckless driving

If your charge is under VA Code § 46.2-852 or § 46.2- 853, it’s probably because you were involved in an accident or the officer is just claiming that your driving was generally reckless. But the Commonwealth still has to prove that you drove in a way that endangered life, limb, or property.

Uncertainty provides our main defense in these kinds of cases. The officer can’t just guess what happened. He needs evidence.

The Virginia Supreme Court has ruled that the mere happening of an accident isn’t reckless driving. The Commonwealth has to be able to point to specific action or inaction by the driver that was reckless. The main evidence against you in accident cases will probably be your own statements to the officer. People unknowingly incriminate themselves while telling the officer what happened. For example, simply saying that your tire slipped off the shoulder and you lost control can be enough for a judge to find you responsible for the accident.

But in a case where you didn’t make any statements or your statements are vague, we may have a strong argument that the Commonwealth simply can’t prove you were driving recklessly.

This is why attorneys always tell people not to talk. We mean it! If you don’t say anything to the police, you won’t provide statements that will be used against you at court.

Importantly, note that the accident report doesn’t really matter in these cases. It’s not admissible in court. It’s basically a reporting tool for DMV’s statistical purposes. Because of this, I counsel clients not to get hung up on errors or mistakes on the accident report. The officer’s testimony in court is what really matters.

Next: What defenses don’t work…?