No Matter How Long You Practice, There's Always Something to Learn

As long as I've been practicing, judges have been reducing DUI's to reckless driving. In fact, most of the time when the judge does that it's considered a victory for the defendant. Imagine my surprise when I found out last week that judges are banned from doing that.

Offender was originally charged with DUID. However, the under the influence part was unprovable. Since there was apparently enough evidence to prove driving "while in too bad a condition to drive", the judge reduced the charge to reckless and convicted. All of this is stuff I learn from the court record as I did not try the original charge.

Then Offender appealed in order to get his guaranteed de novo trial. We come to court on his misdemeanor appeal and his attorney tells me that the judge couldn't do that - it's not allowed. I'm skeptical, because I've seen it done as long as I've practiced. So, I go look it up and, whatdoyaknow, defense counsel was correct.

It's all based on Virginia code sec. 19.2-294.1:

Whenever any person is charged with a violation of § 18.2-266 or any similar ordinances of any county, city, or town and with reckless driving in violation of § 46.2-852 or any ordinance of any county, city or town incorporating § 46.2-852, growing out of the same act or acts and is convicted of one of these charges, the court shall dismiss the remaining charge.

Apparently, sometime in the forgotten primordial ages of Virginia courts, the Virginia Supreme Court ruled that a person could be convicted of both reckless driving and DUI at the same time because they have different elements. The General Assembly took exception to this and passed 19.2-294.1 (although, until 2004 it just said reckless driving and did not state a specific statute). Thereafter, the Courts Appellate Virginian did not admit theoretical defeat while conceding legal defeat. They decided it was the act of driving which was the common act which tied the two charges together under the General Assembly's statute, but that they still had separate elements. Which means that reckless was still not, despite the General Assembly's apparent attempt to make it so, a lesser included in DUI.

In 2004, the General Assembly limited this exception to only the general reckless driving statute and therefore left us in a position where a DUI could be charged with the remaining reckless driving statutes:

46.2-853 Bad Brakes
46.2-854 Passing on Curve or Crest of Hill
46.2-855 Driving with View Obscured
46.2-856 Passing Two Vehicles at Once
46.2-857 Driving Two Cars Side-by-Side in One Lane
46.2-858 Passing at a Railroad Crossing
46.2-859 Passing a Stopped School Bus
46.2-860 Failing to Signal
46.2-861 Driving too Fast For Conditions
46.2-862 Driving 20 mph over the Speed Limit or 80 mph
46.2-863 Failure to Yield Right of Way
46.2-865 Racing

Of course, the judge did not reduce the DUID to one of these, and clearly couldn't because each has it's own separate element to prove which would not be a part of DUI.

So, I ended up making a motion for nolle prosequi so that the officer could go swear out the proper warrant and we can all come back to court in a month or so and do it in a procedurally correct manner.

After having looked at it for a couple days, I'm not sure I had to do that. It was the procedurally safe way to handle the situation, but I think the 2004 amendment might have actually trimmed the reckless part of the statute to the point that it now is a lesser included in DUI. The only thing that concerns me is that some of the Appellate Court cases, in order to stretch to find different elements, have stated in obiter ditcum that DUI's can occur without reckless driving. I think that is non-binding and just plain bad logic. Of course, driving under the influence of intoxicants is reckless - that's why there's all that evidence introduced at trial about how the offender's coordination was screwed up.

Hmm . . . it'll be interesting to see if anyone fights this fight in the future.