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I Have Grave Concerns About the Peace/Fowler/Mullin Pull Over as Reckless Driving Bill

I know I could get in trouble over this. The issue is not protecting first responders but how best to do so. There is always a bad answer to a good concern. It is a good concern to encourage drivers to pull over for emergency vehicles. But I think raising the penalty for a FIRST offense to reckless driving is a bad answer. It is over-criminalization. We have too much of that.

Reckless driving is serious offense in Virginia. It is a class I misdemeanor which has a penalty up to a $2500 fine and up to a YEAR in jail. There also can be a drivers’ license suspension. If the license is NOT suspended, it carries six points. Twelve points in twelve months gets you a nastygram from the DMV.

The present law (Va. Code 46.2-921.1) is right here in pertinent part:

A. The driver of any motor vehicle, upon approaching a stationary vehicle that is displaying a flashing, blinking, or alternating blue, red, or amber light or lights as provided in § 46.2-1022, 46.2-1023, or 46.2-1024, subdivision A 1 or 2 of § 46.2-1025, or subsection B of § 46.2-1026 shall (i) on a highway having at least four lanes, at least two of which are intended for traffic proceeding as the approaching vehicle, proceed with caution and, if reasonable, with due regard for safety and traffic conditions, yield the right-of-way by making a lane change into a lane not adjacent to the stationary vehicle or (ii) if changing lanes would be unreasonable or unsafe, proceed with due caution and maintain a safe speed for highway conditions.

B. A violation of any provision of this section shall be punishable as a traffic infraction, except that a second or subsequent violation of any provision of this section, when such violation involved a vehicle with flashing, blinking, or alternating blue or red lights, shall be punishable as a Class 1 misdemeanor.

Subsection B is changed to this (The lined out words are removed and the italicized words are added) in the Peace/Fowler/Mullin bill (but see below for the subcommittee substitute):

B. A violation of any provision of this section shall be punishable as a traffic infraction, except that a second or subsequent violation of any provision of this section, when such violation involved a vehicle with flashing, blinking, or alternating blue or red lights, shall be punishable as a Class 1 misdemeanor is reckless driving, punishable as provided in § 46.2-868.

C. If the violation resulted in damage to property of another person, the court may, in addition, order the suspension of the driver’s privilege to operate a motor vehicle for not more than one year. If the violation resulted in injury to another person, the court may, in addition to any other penalty imposed, order the suspension of the driver’s privilege to operate a motor vehicle for not more than two years. If the violation resulted in the death of another person, the court may, in addition to any other penalty imposed, order the suspension of the driver’s privilege to operate a motor vehicle for two years.

Note: The present law has reckless driving as a second offense and under certain circumstances has a license suspension. I think that is a fair balance although I am open to an increase in the fine.

Because reckless driving is a criminal misdemeanor not a traffic infraction certain ancillary issues arise. Persons found guilty of a misdemeanor can lose a security clearance or be denied public housing. Indigents charged with this (unless the Commonwealth waives jail time) are entitled with the appointment of an attorney; hiring an attorney for a reckless driving charge is highly recommended and can run as high as $1000 to $1500. It leads to a criminal record if convicted.

Finally the law is vague as written and will not be easy to enforce in any event. Check out this language:

…on a highway having at least four lanes, at least two of which are intended for traffic proceeding as the approaching vehicle, proceed with caution and, if reasonable, with due regard for safety and traffic conditions, yield the right-of-way by making a lane change into a lane not adjacent to the stationary vehicle or (ii) if changing lanes would be unreasonable or unsafe, proceed with due caution and maintain a safe speed for highway conditions.

It is going to be a judgment call for police to decide if the car is proceeding with caution or cannot pull over safely. Now that judgment call is going to be charaged as reckless driving. Your word against the officer’s. Most defendants will plead it out to a lesser offense guilty or not.

I empathize with the position Del. Peace and Fowler were in with a news story like this:

The widow of a Hanover County firefighter killed in October while working along Interstate 295 joined lawmakers Monday to push for stiffer penalties for those who violate a state law that calls for motorists to move one lane away from emergency vehicles stopped by the side of the road with flashing lights.

Sometimes leadership says no to things like this or tries to find a better way to meet the legitimate need. Making this offense reckless driving for a first offense is not the right solution.

The subcommittee slightly changed the effect of the statute but not in a manner than changes my concerns over it. The old “pull over” law is, in the committee substitute, entirely repealed and replaced with a new pull over law with the penalty being reckless driving. My readers should contact their delegate and ask him or her to vote NO.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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