Montana Supreme Court Cites “The Wire”, Notorious B.I.G., and N.W.A.

Justice James Jeremiah Shea of the Supreme Court of Montana briefly overtook U.S. Supreme Court Justice Elena Kagan in the race to make the coolest references in a published judicial opinion yesterday. (Justice Kagan’s spider-man reference can be found in the Kimble v. Marvel opinion here.) The case was State v. Glass and the issue was whether the defendant’s federal conviction for conspiracy to distribute methamphetamine barred “a subsequent state prosecution for possession of dangerous drugs on double jeopardy grounds.”

In the case, Mr. Glass was charged by the state of Montana in June of 2014 for, among other things, criminal distribution of methamphetamine and criminal possession of methamphetamine. He pleaded not guilty to all of the state charges. A few months later, Mr. Glass found himself in Federal court facing charges of conspiracy to distribute methamphetamine and one count of felon in possession of a firearm. In federal court he pleaded guilty to the conspiracy to distribute charge.

Later, when the state charges went to trial, Mr. Glass moved to dismiss the state’s charges arguing that the prosecution was barred by Montana’s double-jeopardy statute. The State responded that the basis for the state possession charge did not involve the same criminal objectives or conduct as the Federal charges. It seems that Mr. Glass had received sixteen ounces of methamphetamine; of that, he distributed fourteen ounces and used two himself. The Federal charge applied to the fourteen ounces. The state possession charge applied to the two ounces he used. (That was even though he had smoked all two ounces–there was residue of meth on a pipe that police found in Mr. Glass’s vehicle. The residue alone was enough to support a possession charge under Montana law.)

Justice Shea. writing for a unanimous court, agreed with the state of Montana. In his conclusion, he echoed sentiments from “The Wire”, Notorious B.I.G., and N.W.A:

‘Don’t get high on your own supply’ is a long-established rule in the drug trade specifically because such conduct is inconsistent with the criminal objective of distributing drugs for profit. To that rule we now add the legal caveat: ‘Don’t get high on your own supply, ’cause double jeopardy don’t apply.’

The entire opinion can be found here.

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Starting a Virginia Business

Starting a business is an exciting and nerve-wracking experience. Whether the venture is meant to be big, bold, and long-standing or whether it is intended as a narrow, limited, temporary entity, the reality is that no one knows how the future will unfold. Every entrepreneur encounters unexpected issues that are good and bad. Likewise, they often end up working with a myriad of unforeseen contractors, employees, partners, businesses, and individuals.

Plan for the Future Now

Despite these unknowns (or perhaps in part because of them), new entrepreneurs often focus on their immediate broad goals and needs then leave the subtleties and details to be worked out later. Unfortunately, this is the wrong approach. Neglected details quickly and needlessly turn into headaches.

Although it is difficult, proper planning is an essential step if you want your Virginia business to prosper.  It helps maintain good relations with partners and vendors, and it maximizes your bottom line. Similarly, proper legal planning can help facilitate the business’s overall function. It will also help prevent problems or address them before they occur.

Questions to Consider When Starting Your Virginia Business

  1. What is the business activity?
  2. What is the current structure?
  3. Is the business registered already in another state?
  4. Where does it or will it conduct business activities?
  5. How many employees are there currently?
  6. How many owners, investors, and managers are there currently?
  7. What is your business’s exposure to liability?
  8. Can you insure against the risks?
  9. How many shareholders, partners, and managers do you anticipate?
  10. How many employees do you anticipate?
  11. What, if any, benefits do you intend to offer them?
  12. How long do you intend to run the business?
  13. What gross income range do you anticipate over the next few years?
  14. What are your retirement savings plans relative to the entity?
  15. How much time do you devote (full time or part time) to the entity?
  16. How important is administrative ease?

The answers to these questions will help guide the choice of entity (i.e., the type of business such as a sole proprietorship, LLC, PLLC, LLP, partnership, s-corp, c-corp, or  benefit corporation) and dictate the necessary paperwork, licenses, and other filings.

Taxes

In addition to the questions above, you should carefully consider taxes. The type of entity you form should be driven by, among other concerns, tax considerations. Likewise, how you will pay taxes, what taxes will be owed, and the impact of each employee, contract, or investment on your bottom line should be considered beforehand. Not only will these planning steps lead to a larger net profit, but they will keep the business and its owners out of trouble with the government–whether local, state, or federal.

Professional Legal Advice

With the advent of legal zoom and other online resources, it may be tempting to simply create your business entity through self-help and online filings.  While this may be appropriate for some enterprises–such as those formed by a limited number of experienced entrepreneurs–most people should seek legal counsel when forming a new Virginia business.  Similarly, you should consult with counsel early in the process so that mistakes or vulnerabilities can be identified and remedied early.  This will provide a peace of mind and net benefit to the company that will be as important as any other investment your new business makes.

If you are considering forming a new business in Virginia, please contact our office today to make an appointment.

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Drunk in Public, Fairfax Virginia

Public cursing (i.e., swearing in public) and public intoxication (i.e., drunk in public) are both prohibited by Virginia law. Police officers rarely charge citizens with swearing in public, but charges of public intoxication are fairly routine.

The Statute: § 18.2-388 of the Virginia Code

If any person profanely curses or swears or is intoxicated in public, whether such intoxication results from alcohol, narcotic drug or other intoxicant or drug of whatever nature, he shall be deemed guilty of a Class 4 misdemeanor. In any area in which there is located a court-approved detoxification center a law-enforcement officer may authorize the transportation, by police or otherwise, of public inebriates to such detoxification center in lieu of arrest; however, no person shall be involuntarily detained in such center.

As a Class 4 Misdemeanor, it is punishable only by a fine of not more than $250.

In plain English, how can one be found guilty of public intoxication?Drunk in Public Figure

Actually, it’s very easy to be charged with public intoxication. Generally speaking, if you show physical signs of intoxication such as stumbling, difficulty speaking, or other outward behavioral indications of intoxications then you are “drunk” for the purposes of the statute. You are in public if you are in “open view” of homes or a public street.

The discretion provided to police is pretty broad here. We’ve even seen cases where the police have pulled over cars, noticed that the passenger was drunk, asked the passenger to step out of the car, and then written a ticket to the passenger for being drunk “in public.”

What can be done for someone that has been charged with being drunk in public?

There are a number of different strategies to deal with a drunk in public charge. The first thing to do is examine the evidence.  A lawyer will ask the officer what they saw that made them think the defendant was drunk. This is often fairly straightforward. Another strategy might revolve around negotiating with the prosecutor to get the charge reduced to some non-criminal infraction. If you’re facing a public intoxication charge, you should consider consulting with an attorney to determine whether there are any possible defenses you can present.

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Felony Larceny of Girl Scout Cookies

The Lexington Herald-Leader is reporting that a Kentucky woman was recently indicted for felony larceny of $15,000.00 worth of Girl Scout cookies. It appears that the woman was the troop leader for the Wilderness Road Chapter of the Girl Scouts. She went down to the cookie pickup point and picked up the chapter’s cookies on February 1st. The woman did not pay for the cookies or deliver them to the girl scouts.Picture of Cookies

It’s unclear what happened to the cookies, but the grand jury indicted her for felony unlawful taking. In Kentucky, like many other states, the potential punishments for thefts varies according to the amount taken. In this case, the charge is a Kentucky Class C Felony because the value of the stolen cookies is between $10,000.00 and $1,000,000.00.

Virginia Larceny

In Virginia, unfortunately, the potential punishment for larceny hinges on just one number: $200.00. A Virginia larceny is a felony if the item or items stolen are valued at $200.00 or more. (The felony statute is here.) It is a misdemeanor if the value is less than $200.00. (The misdemeanor statute is here.) As a felony, larceny is a crime punishable by, among other things, up to twenty years of imprisonment. Misdemeanor larceny is punishable by, among other things, up to twelve months in jail.

This $200.00 threshold means that defendants who steal even small items face big consequences. For example, Virginia shoplifters who steal a couple of shirts might find themselves facing twenty years in prison. A Girl Scout cookie thief in Virginia would face felony charges for stealing only forty boxes of cookies. (Based on a $5.00 per box value.)

Because the felony threshold is so low, it is important to verify the value of the items that were allegedly stolen. Likewise, it is essential that a licensed attorney examine the Commonwealth’s evidence and confirm that they can prove every element of larceny. Additional information on how an attorney can help a defendant charged with larceny can be found here.

What happened to the cookies?

Really though, the most interesting aspect of this case to me is just what happened to the cookies. By my estimate, the woman stole about 3000 boxes of girl scout cookies. It seems unlikely to me that the she moved the cookies on some sort of cookie black market or on the dark web for bitcoin. I suppose it’s possible she ate them all herself but that would be about 30 boxes of cookies a day. At my best, I think I could only eat 3 boxes a day.

I’ll be following the story and provide more as it develops.

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Virginia DWI – How will the state prove its case?

A Virginia DWI or Driving while intoxicated (DWI)–more commonly known as drunk driving–is a serious criminal offense. Although some states make a distinction between driving under the influence (DUI) and driving while intoxicated, Virginia is not one of them.

The Virginia DWI Statute

In Virginia, the crime is driving while intoxicated. The law can be found at § 18.2-266 of the Virginia Code. It lays out five separate ways that the prosecutor can prove someone is guilty of a Virginia DWI. In plain English, it is illegal in Virginia to “drive or operate” a vehicle:

Image of Beer, a contributor to Virginia DWI(1) while having a blood alcohol concentration of 0.08;

(2) while under the influence of alcohol;

(3) while under the influence of any drug;

(4) while under the influence of drugs and alcohol; or

(5) while having certain levels of specific drugs in your bloodstream.

Although there are five ways that one can be found guilty, there is only one law. And a defendant who is charged with DWI can be found guilty under any one of the ways listed above.

How the prosecutor can use a “rebuttable presumption” to convict.

The most common way for the prosecution to prove a Virginia DWI is to trigger what is called a rebuttable presumption. Notice that two of the ways that a person can be found guilty listed above (number 1 and number 5) refer to the amount of alcohol or drugs found in the defendant’s bloodstream.

If the prosecution has scientific tests such as a breathalyzer or blood measurement they can submit the results during the trial as evidence. If the tests were properly done they will be admitted. And they will create what is called a “rebuttable presumption” if they show that the alcohol or drug levels in the defendant’s blood were high enough. This presumption will allow the judge or jury to presume that the defendant was “under the influence” of alcohol or drugs while driving due to the level of alcohol or drugs in their blood. The law then allows the defendant to submit evidence to disprove that they were under the influence, but that can be tough to do as a practical matter.

The majority of DWI cases are alcohol cases. And the easiest way for the prosecutor to prove these cases is to use the results from a breathalyzer or blood test. Likewise, the easiest way for a prosecutor to prove that the defendant was under the influence of, for example, cocaine is to submit blood test showing the level of cocaine in the person’s blood stream.

Other ways the prosecutor can prove a Virginia DWI.

But even If there is no blood test, that does not mean that the defendant will “walk.” To the contrary, the law allows the prosecutor to put forth circumstantial evidence that a driver was “under the influence” to prove a Virginia DWI. This would include things like: the smell of alcohol on the driver’s breath, blood-shot eyes, the inability to walk a straight line, slurred speech, and the inability to stand without wobbling. One of the biggest things that might be used against a defendant is their own words. Often, when a the police officer will simply ask the defendant if they have been drinking. Nine times out of ten, the defendant will answer yes.

What can be done to defenses can be made in a Virginia DWI case?

Virginia DWI cases are technically very complex and there are many possible defenses. Whether or not they are available will depend on the facts and circumstances of the case. For example, in blood alcohol cases with a breathalyzer, there may be a problem with the calibration of the instrument. Likewise, there may be problems with the initial traffic stop. If you’ve been charged with a Virginia DWI, the consequences can be significant. You should consider contacting an attorney immediately to discuss your case.

 

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Virginia Assault Laws

Virginia Assault Laws are very tough and an assault and battery charge is a serious offense. The basics of all assault and battery charges are the same, but the punishments vary based on different factors such as who the victim is, why they were chosen, and whether there was bodily harm done.

The Statute: § 18.2-57 of the Virginia Code

The basic Virginia assault laws are found at § 18.2-57 of the Virginia Code. (Note that Virginia’s domestic abuse laws are found in a different statute, § 18.2-57.2.)

Simple assault or assault and battery is prohibited under paragraph (A) as a Class 1 misdemeanor. This is something like your basic punch in the face. Class 1 Misdemeanors are punishable by up to 12 months confinement in jail and a fine of up to $2500.00. If the victim of the assault was chosen because of their “race, religious conviction, color or national origin” there is mandatory term of Fist representing Virginia Assault Lawsconfinement of six months and mandatory minimum term of actual confinement of 30 days. These are often referred to as hate-crime assaults. Paragraph (B) provides that if there is bodily injury in a hate-crime assault then the assault and battery becomes a Class 6 Felony punishable by up to five years of confinement and a fine of up to $2500.00. The mandatory minimum term imposed must be six months and with actual confinement of up to 30 days.

In addition, under paragraph (C) it is also a Class 6 Felony with a minimum six months of confinement to assault: a judge, a police officer, a correctional officer (i.e., prison guard), someone who provides care for prisoners, a firefighter or an emergency medical technician.

There are also enhanced penalties for assaulting a full-time school employee or health care providers who are providing emergency services.

In plain English, how can one be found guilty of violating Virginia Assault Laws?

“Assault” and “assault and battery” are terms that are often used. Their actual legal meaning, under Virginia law, is close to their common every day use. But when someone says “they were assaulted,” they usually mean that they were physically hit. Under the law, the actual physical “hit” is the “battery” part of assault and battery. In Virginia, a “battery” is the “willful or unlawful touching of another” that results in harm. Parish v. Commonwealth, 56 Va.App. 324, 330, 693 S.E.2d 315, 319 (Va.App.2010) (quoting Wood v. Commonwealth, 149 Va. 401, 404, 140 S.E. 114, 115 (1927)). For the purposes of the law, the “harm” does not have to be physical. There doesn’t have to, for example, be a bruise. The hurt feelings that come from being physically hit are enough to make one guilty of a simple battery charge. So one can be guilty of a battery just by touching someone else in an offensive or harmful manner.

The “assault” part is a little more complicated. It can occur in two ways. It’s an assault when someone does anything that is meant to inflict bodily harm AND the thing they do has the ability to actually inflict the intended harm. So for example, it’s an assault when someone tries to punch someone else and they’re close enough to actually hit them. It doesn’t matter whether they actually hit. The assault is complete when the person throws their punch. It’s also an assault when someone does anything that is intended to place their victim in fear of being hurt AND the victim actually does become afraid. Clark v. Commonwealth, 279 Va. 636, 641, 691 S.E.2d 786, 789 (2010).

What can be done for someone that has been charged with a crime under Virginia Assault Laws?

Assault and battery cases are rarely open and shut. Since an assault and battery must be “intentional” possible legal defenses can revolve around whether any harm was actually meant. In addition, self-defense and defense of others may come into play. If you’re facing an assault and battery charge, you should consider consulting with an attorney immediately to evaluate the facts of your case.

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Drug Possession, Virginia

Drug Possession in Fairfax, Virginia and throughout Virginia is a criminal offense. The maximum punishment for drug possession depends on the substance possessed.

The Statute: § 18.2-250 of the Virginia Code

A. It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act (§ 54.1-3400 et seq)

Picture of Drug Possession

The statute sets out punishments based on the Virginia “drug schedules.” Those schedules are laid out in the Virginia Drug Control Act. The Drug Control Act categorizes drugs and puts them in one of six “schedules” labeled I, II, III, IV, V, and VI. (That’s just one through six in roman numerals.) The drugs are categorized based on a set of criteria laid out § 54.1-3443. Generally speaking, the lower the schedule the drug is put on, the “more dangerous” the drug is considered.  Heroin, for example is a schedule I drug because it is considered highly addictive. The punishment for drug possession is greater if the drug is on a lower schedule.

Note: Marijuana possession is addressed by § 18.2-250.1 and discussed here. Manufacturing, selling, distributing or possessing with intent to distribute are all addressed by § 18.2-248 and discussed here.

How does the schedule correlate to the maximum punishment for drug possession (i.e., “how much trouble am I in”)?

Possession of Schedule I or II drugs is punishable as a Class 5 Felony: a term of imprisonment of not less than one year nor more than 10 years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.

Possession of Schedule III drugs is punishable as a Class 1 Misdemeanor: confinement in jail for not more than twelve months and a fine of not more than $2,500, either or both.

Possession of Schedule IV drugs is punishable as a Class 2 Misdemeanor: confinement in jail for not more than six months and a fine of not more than $1,000, either or both.

Possession of Schedule V drugs is punishable as a Class 3 Misdemeanor: a fine of not more than $500.

Possession of Schedule VI drugs is punishable as a Class 4 Misdemeanor: a fine of not more than $250.

In plain English, how can one be found guilty of drug possession?

Essentially, the Commonwealth must prove two things to convict for drug possession. First, that whatever the officer seized or took is a drug that is illegal. Second, that it was possessed knowingly or intentionally. For conviction, the schedule of the drug doesn’t matter–that only matters for punishment. The prosecution will get the suspected drug tested by a lab. This will prove that it’s a drug (such as cocaine or heroin). They will then submit the lab report into evidence. Doing this proves that the substance was a “drug.”

Next, they’ll have to prove enough facts to show that the defendant “knew” they possessed the substance and that they “knew” it was a drug. It is, of course, difficult to prove what is in someone’s head. The prosecution will usually have to rely on circumstantial evidence to make its case. For example, if the drugs were found in the defendant’s pocket the prosecutor would argue that they possessed the drugs “knowingly” because people usually know what’s in their pockets. It’s the same thing for their knowledge that it was a drug. Most people don’t carry, for example, a baggie of cocaine in their pocket without knowing what they’ve got.

Often, the prosecution will prove knowledge through the use of a confession. Defendants sometimes admit to possession and knowledge of the drugs when simply asked by the officer. In many, but not all such cases, these confessions are admissible. This is because the suspect was not in custody when the officer asks if the drugs were theirs so the admission is not covered by Miranda v Arizona.

What can be done for someone that has been charged with drug possession?

Drug possession charges can be difficult to beat and are highly fact specific. They depend on many nuances of search and seizure law. These laws provide the rules for when a police officer can lawfully make a search. Generally, evidence obtained in violation of the search and seizure laws is inadmissible. Good attorneys will always investigate and talk to the police officer about how the drugs in question were discovered. If there are problems with the search and seizure of the evidence, the prosecution will often be willing to make a favorable plea bargain or, in some cases, drop the charges outright.

But even if there aren’t technical problems with a case, a good attorney can still help. The prosecution will sometimes be willing to make deals with defendants. And this is especially true if the defendant has never been in trouble before.

If you’re facing a drug possession charge, you should consider consulting with an attorney to determine whether there are any possible defenses you can present.

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Marijuana Possession Virginia

Marijuana Possession in Virginia is a misdemeanor criminal offense. A first offense is punishable by up to 30 days in jail and a fine of up to $500.00. A second offense is a Class 1 misdemeanor punishable by up to twelve months confinement in jail and a fine of up to $2500.00.

The Statute: § 18.2-250.1 of the Virginia Code

It is unlawful for any person knowingly or intentionally to possess marijuana unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act (§ 54.1-3400 et seq.).

In plain English, how is one found guilty of marijuana possession?

Essentially, the Commonwealth must prove two things to convict for marijuana possession. First, that whatever the officer seized or took is a marijuana. Second, that it was possessed knowingly or intentionally. For marijuana, the officer will usually test the suspected substance using a field lab test. Depending on the court, this field test can be sufficient to prove the identity of the substance.

Next, they’ll have to prove enough facts to show that the defendant “knew” they possessed the substance and that they “knew” it was a marijuana. It is, of course, difficult to prove what is in someone’s head. The prosecution will usually have to rely on circumstantial evidence to make its case. For example, if the drugs were found in the defendant’s pocket the prosecutor would argue that they possessed the drugs “knowingly” because people usually know what’s in their pockets. It’s the same thing for their knowledge that it was a drug. Most people don’t carry, for example, a baggie of marijuana in their pocket without knowing what they’ve got.

Often, the prosecution will prove knowledge through the use of a confession. Defendants sometimes admit to possession and knowledge of the drugs when simply asked by the officer. In many, but not all such cases, these confessions are admissible. This is because the suspect was not in custody when the officer asks if the drugs were theirs so the admission is not covered by Miranda v Arizona.

I was issued a summons or arrested for marijuana possession or arrested for marijuana possession–what can be done?

Marijuana possession charges can be difficult to beat and are highly fact specific. They depend on many nuances of search and seizure law. These laws provide the rules for when a police officer can lawfully make a search. Generally, evidence obtained in violation of the search and seizure laws is inadmissible. Good attorneys will always investigate and talk to the police officer about how the drugs in question were discovered. If there are problems with the search and seizure of the evidence, the prosecution will often be willing to make a favorable plea bargain or, in some cases, drop the charges outright.

When it is a defendant’s first marijuana possession offense, there is a special option to resolve the case. VA Code  §  18.2-251 allows for a defendant to get a first possession charge dismissed if they comply with certain requirements that are discussed here.

But even if there aren’t technical problems with a case, a good attorney can still help. The prosecution will sometimes be willing to make deals with defendants. And this is especially true if the defendant has never been in trouble before.

If you’re facing a marijuana possession charge, you should consider consulting with an attorney to determine whether there are any possible defenses you can present.

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Virginia First Drug Possession Offense

First Drug Possession Diversion in Virginia.

Virginia Code § 18-251 provides a statutory diversion program for first drug possession offenses. To qualify, the defendant must not have been “previously convicted” of any prior drug related offenses. This includes offenses under federal law or of any state. The program is good, in that it can resolve a possession charge with minimal impact on the defendant’s criminal record. It is not easy though. There are many requirements.

Under the statute, after the court has enough evidence to convict the defendant of possession of a controlled substance or possession of marijuana (either because they pleaded guilty, or there was a trial) the court can defer entering a judgment of guilt and place the defendant on probation with terms and conditions. The defendant will immediately forfeit any driver’s license for six months, but may apply for a restricted license. The defendant must also be fingerprinted, if that wasn’t done already.

The terms and conditions of probation.

  • A substance abuse assessment for the defendant and treatment or education program as appropriate;
  • The defendant stay drug and alcohol free during the period of probation and agree to drug or alcohol testing to ensure that they stay drug and alcohol free;
  • That the defendant make reasonable efforts to get and keep a job;
  • Performance of 100 hours of community service for felony possession or 24 hours of service for misdemeanor possession.

The defendant is responsible for court costs, paying for treatment and education, as well as other costs. If the defendant can comply with all the terms of probation, then the Judge will “discharge the person and dismiss the proceedings against him.” By statute, there is no finding of guilt and the charge remains only for the purposes of determining whether the defendant has a first drug possession offense.

The full text of the statute can be found here.

 

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Reckless Driving, Fairfax, Virginia

Reckless driving in Fairfax, Virginia and throughout Virginia is a criminal offense that is defined as a Class 1 Misdemeanor. It is punishable by confinement in jail for up to 12 months and a fine of not more than $2,500.00. There is a mandatory $250.00 fine if the person convicted is using a “handheld personal communications device” when the crime is committed

The Reckless Driving Statute: § 46.2-852 of the Virginia code.

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.

What does it mean in plain English?

First of all, “highway” in this case doesn’t mean “highway” as most people use the term. Most people think of a highway as the interstate. For example, I-495 and I-95 are “highways” to most people. But that’s not what the statute means. Under Virginia law, a highway is basically just any street or road. Virginia Code § 46.2-100 defines a “highway” as the entire space between the boundary lines of “every way” open to the use of the public for purposes of vehicular travel.

The phrase “irrespective of the maximum speeds permitted by law” means that the speed limit on the particular street doesn’t matter. You can be convicted of reckless driving for going 25 mph on a 35 mph street if the circumstances are such that your driving endangers the life, limb or property of any person. For example, think of someone driving 25 mph down a street that is crowded with people on the street during a protest or festival.

The essence of the offense.

The key here is that if you’re charged with reckless driving, the police officer thought you were driving dangerously. There are many driving behaviors that might qualify. They include, among other things: passing two vehicles abreast or passing with your view obstructed; failing to yield the right of way; passing a stopped school bus; failure to yield the right of way; and racing.

Picture of what is not Reckless Driving

But the most common way to get a reckless driving ticket is through excessive speed. In Virginia, driving 20 miles per hour over any posted speed limit is considered reckless driving. In addition, driving faster than 80 miles per hour is always reckless driving. That means 56 in a 35 mile per hour zone is reckless driving. And if you’re going faster than 80, the posted speed limit doesn’t matter. You will get a reckless driving ticket for going 81 miles per hour in a 70 mile per hour zone even though it is only 11 miles over the speed limit.

I got a reckless driving ticket in Fairfax, Virginia–what can be done?

There are many possible defenses. Since it is a criminal charge, the Commonwealth of Virginia has the burden of proving all the elements of the crime. For example, in speed based cases it must prove that the radar gun was properly calibrated.

In some cases, the prosecutor may also be willing to reduce the charge to a traffic infraction. Both simple speeding or “improper driving” might be options. (Improper driving is a lesser form of reckless driving.) A skilled attorney will evaluate all the facts of a case to get the best possible outcome.

If you’re facing a reckless driving charge, you should consider consulting with an attorney to determine whether there are any possible defenses you can present.

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