Why you should be aware of Virginia’s new criminal move over law – 46.2-861.1

Many people are familiar with a Virginia requirement that requires you to move over a lane if a police cruiser is stopped on the side of the road with flashing lights on.  However, many people are not aware that as of July 1, 2019, Virginia law now makes it a criminal offense punishable by jail.  In passing 46.2-861.1, a new form of criminal reckless driving was created.  

The charge often shows up in the Fairfax County online court computer system as “Fail to Yield-Emerg MV-Rec Dr” and is listed under 46.2-861.1(A).  It may be listed differently in Arlington County, Prince William County, and Loudoun County.  Regardless of how it is described, one fact is clear - if you are convicted, you will have a permanent criminal record, possibly affecting your security clearance, causing your insurance to skyrocket, prohibiting you from entering an elementary school, and affecting employment, life insurance, and other opportunities in life.  

This new charge, even as a first offense, is punishable by up to 12 months jail, a $2500 fine, and up to two years of license loss.  Moreover, judges do convict drivers of this charge.

My office received a call from a person who had a great record and went to court ALONE in Fairfax.  He was shocked when the judge found him guilty.  He was even more shocked when we had to inform him that there was nothing we could do to help him after the fact.  In jurisdictions like Fairfax, you do not have access to the prosecutor to negotiate a reduction unless you have a lawyer.46.2-861.1 Fairfax Virginia Move Over Law Fail to Yield to Emergency Vehcile

What Does 46.2-861.1 Require You to Do in Virginia?

Given what’s at stake, it’s important to understand your legal obligations. First off, the law only applies on a highway that has at least four lanes (at least two of which are headed in the same the officer is facing). When on such a highway, you must, if reasonable, make a lane change into a lane not adjacent to the lane next to which the cruiser is pulled over. If changing lanes would be unreasonable or unsafe, you must proceed with caution and maintain a safe speed for highway conditions.  While the law has much more specifics, these are the basic components.

No actual recklessness required!

This law does not require actual recklessness!!!  Rather the way it’s written, any conduct that violates is automatically deemed reckless. I get clients all the time that say “I violated the law but it wasn’t reckless.” A showing of recklessness is not required to find you guilty.

What Should You Do After Being Pulled Over?

First, always be polite. Do not argue your case on the side of the road. However, if the officer asks why you didn’t move over a lane, it is important to politely explain why. Failure to state why you didn’t move over IF ASKED, will later cast doubt on any reason provided at the time of court. 

Second, after you get home, contact my office. Even if you conduct falls within the statute I can often times convince the prosecutor to reduce the charge so that it’s only a non-criminal infraction and not reckless.  In fact, in these cases I have nearly 100% success rate of getting the charge reduced to a non-reckless, non-criminal, traffic infraction.  I have successfully handled nearly 4000 reckless driving cases of all  forms. 

Contact Our Fairfax Law Office Today

703-556-0004 or use the contact page to email.  

Kyle Manikas
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