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Reckless Driving & Eluding

Fairfax Criminal Defense Attorney Explains: Reckless Driving & Eluding

In Virginia, traffic offenses have two categories: traffic infractions and crimes.

 A traffic offense which is criminal in nature is either a misdemeanor or a felony. A traffic infraction is a "violation of the public order" - it is not a crime. Whether a crime or an infraction, there can be negative consequences associated with a conviction for committing a traffic offense.

 Penalties associated with a traffic infraction typically involve a fine up to $250 (except for Running a Red Light and Improper Driving which carry fines of $350 and $500, respectively).  The Virginia DMV (Department of Motor Vehicles) assesses points for infractions which are recorded on a driver's DMV transcript.  These points can also be assessed for traffic offenses that are crimes.  The points are fixed; the judge cannot waive or reduce them.  A person's point balance on their driving transcript can impact their insurance rates and premiums and can result in the DMV suspending their license for rapid point accumulation.  Additionally, certain traffic related offenses require, upon conviction, the suspension of one's driver's  license. 

Common traffic offenses which are crimes include: Reckless Driving by Speed (20 mph over the speed limit or any speed in excess of 80 mph); Reckless Driving General; Racing; Eluding the Police (as a felony or misdemeanor); Hit and Run (as a felony or misdemeanor); Driving w/o a License; Failing to Update a License; Driving on Suspended; Driving on Revoked related to DUI (as a felony or misdemeanor).  Each of these offense carries as a punishment the possibility of a jail sentence, the loss of the privilege to drive, and a fine of up to $2,500. 

There are several goals one may seek to achieve in defending a traffic offense that has been charged by a police officer. 

  • First and foremost, to seek a resolution that does not involve any jail time;
  • Second, to reduce or eliminate any period of license loss;
  • Third, to minimize the monetary penalty that could be imposed; and
  • Lastly, to reduce the number of points that will be assessed by the DMV.

These goals can be achieved through the plea bargaining process or by taking the matter to trial.  Whether to engage in a plea bargain or to contest the matter and proceed to trial requires a full analysis of the facts of the case and an understanding of the applicable law. 

Note - not every traffic offense has as a potential penalty the possibility of jail, or the loss of your license.  No traffic infraction carries even the possibility of jail and the court cannot suspend your license for an infraction; the DMV, however, can suspend your license for a traffic infraction conviction if you have accumulated excessive points on your record within a short period of time. 

Click here to read about Virginia DMV Rapid Point Accumulation and associated consequences - these consequences are separate and independent from what the Court may impose. 

These are all issues that an experienced traffic attorney can counsel you on in order to make the best decision for you.  Contact us today if you have been charged with a traffic related offense in Fairfax County or elsewhere in Northern Virginia! 

Reckless Driving

Reckless Driving in Virginia is punishable as a Class 1 Misdemeanor, meaning if you are convicted you face up to 12 months in jail and/or a $2,500.00 fine.  In addition, the Court may suspend your license for up to 6 months.  If you lose your license for a period of time, you may be able to seek a restricted license.  However, if your license is suspended for Racing, you may not receive a restricted license.  Reckless Driving can be charged as a Class 6 Felony if you are driving recklessly when your license is suspended or revoked due to a moving violation and the act of reckless driving is the sole and proximate cause of the death of another.  

Reckless Driving, General

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 - that is the Reckless General statute.

While speed may certainly be a factor, the posted speed limit may be immaterial.  For example, depending on the driving behavior it will not matter that you were going the speed limit if you were driving recklessly or in a way that endangered life, limb, or property.

By statute, a person charged with Reckless Driving General can be convicted of a statutory lesser offense known as Improper Driving.  Improper Driving is an Infraction and carries a maximum penalty of up to $500.00.  And, instead of 6 demerit points that would otherwise be assessed on your Virginia DMV record, you would only receive 3 points.

Reckless by Speed

A person is guilty of reckless driving who drives a motor vehicle on the highways in the Commonwealth (i) at a speed of 20 miles per hour or more in excess of the applicable maximum speed limit or (ii) in excess of 85 miles per hour regardless of the applicable maximum speed limit - that is the Reckless by Speed statute.

There are areas in Virginia where the speed limit is 70 miles per hour, yet if you travel at 86 miles per hour you could be charged with a Class 1 Misdemeanor.  Further, if you are traveling 75 miles per hour in a 55 mile per hour zone, like on 495, you are committing a Class 1 Misdemeanor. 

In truth, most people do not face jail sentences for Reckless by Speed unless the speed is very high, typically high 90s and beyond.  However, your driving record could influence your sentence as well.  The bigger issue for Reckless by Speed cases is trying to avoid a loss of license or a misdemeanor conviction all together.  Every Reckless by Speed case could be charged as a Simple Speeding case which is only an Infraction. 

Reckless Driving by Passing a 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 - that is the basic Reckless Driving Statute for Passing a School Bus

You do not need to stop for a bus under the statute on a divide highway that is separated by a physical barrier or unpaved area.

Code Section 46.2-1090 requires school buses to be equipped with warning signals - the flashing yellow and red lights.  However, that sections states: Failure of a warning device to function on any school bus shall not relieve any person operating a motor vehicle from his duty to stop as provided in [the Reckless Driving by Passing a School Bus statute].

There is a civil violation for passing a school bus which is far more a desirable outcome that being convicted of a misdemeanor. 

Racing, a form of Reckless Driving

The statute states: 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.

Any person, although not engaged in a race as defined by the Racing statute set forth above, who aids or abets any such race, is guilty of a Class 1 misdemeanor.  Aiding and Abetting means helping, promoting, encouraging, inciting, or assisting.

Aggressive Driving, which is not the same as Reckless Driving

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.

This offense is a Class 2 Misdemeanor unless you commit this offense with the intent to injure another person; if that is the case it is punishable as a Class 1 Misdemeanor.

There are other forms of Reckless Driving.  The offenses described above are the most commonly charged forms of Reckless Driving.  Reckless Driving is a Misdemeanor and merits your attention if you are charged with such an offense.  Contact an experienced Criminal Defense Attorney if you are facing a Reckless Driving offense.  George Freeman will be glad to meet with you and discuss your situation.  


There are two forms of Eluding - Misdemeanor Eluding and Felony Eluding.  

Misdemeanor Eluding is punishable as a Class 2 Misdemeanor, meaning you could face up to 6 months in jail and/or a $1,000.00 fine.  Misdemeanor Eluding: 

  • Any person who, having received a visible or audible signal from any law-enforcement officer to bring his motor vehicle to a stop, drives such motor vehicle in a willful and wanton disregard of such signal or who attempts to escape or elude such law-enforcement officer whether on foot, in the vehicle, or by any other means, is guilty of a Class 2 misdemeanor.

A visible or audible signal is exactly what you think - blue lights and/or a siren.

If, while the officer follows the vehicle it seeks to stop, the vehicle continues to drive without stopping, that will satisfy the willful and wanton disregard element.  However, if a person is under duress or otherwise not able to stop the vehicle that would not be willful and wanton. It is an affirmative defense to the charge if you reasonably believe your were not being stopped by a legitimate police officer.

What's more, based on the language of the statute, if you immediately stop the vehicle your are driving but then run off on foot, that constitutes an Eluding.

Felony Eluding is punishable as a Class 6 Felony, meaning you could face up to 5 years confinement and/or a fine of up to $2,500.00.  Felony Eluding: 

  • Any person who commits a Misdemeanor Eluding, and also interferes with or endangers the operation of the law-enforcement vehicle or endangers a person is guilty of a Class 6 felony.

The endangered person could be the officer, any other motorist or person nearby, or the defendant himself. 

If during the pursuit an officer is killed or injured as a direct and proximate cause of the pursuit, the felony offense is elevated to a Class 4 Felony, punishable by up to 10 years confinement but not less than 2 years.

A person convicted of Felony Eluding shall have his license revoked for one year.  For a Misdemeanor, the suspension shall be for not less than 30 days nor more than one year.  If the person eluding also traveled in excess of the speed limit by 20 miles per hour or more, the suspension shall be for at least 90 days.  If your license is suspended for an Eluding offense, you cannot be given a restricted license. 

Cruiser Video - The reality of the world today, most every eluding event is captured on video.  This is particularly so in Fairfax County as most police agencies have cruiser video installed and many officers have body worn cameras. 

If you are facing an Eluding charge, contact a seasoned Fairfax Criminal Defense Attorney.  Call George Freeman today to schedule a free consultation.

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