If your case cannot be resolved by agreement, there must be a strategy before a case can proceed to trial. Nothing angers a judge more than a lawyer who puts on a trial with no issues. There are a number of potential issues that can arise in a reckless driving case. The following is not intended to constitute a comprehensive list of every issue that can or should be used in defending a reckless driving case. Every case is different and has different circumstances. Moreover, many of the tactics I use I consider to be proprietary - that is, they are strategies that I have developed and employ for my clients. I have spent a lot of time and effort developing these techniques and I do not make them public. The following list, therefore, is intended to illustrate some of the tactics and thinking used in defending reckless driving cases.
Admissibility of the Officer's Calibrations
In a reckless driving trial, where the charge is based on speed, the most significant issue is the admissibility of the officer's calibrations. In Virginia an officer can offer a visual estimate of your speed and Virginia appellate courts have ruled this is proper lay person opinion testimony; however, there are sometimes problems with the officer's visual estimate. In those situations the calibration is very important. The officer will produce a calibration for either their speedometer (if speed was determined by pace) or their radar or laser unit. The main code sections used to admit these calibrations into evidence are Virginia Code Section 46.2-942 (applies to speedometer calibrations) and Virginia Code Section 46.2-882 (applies to laser and radar unit calibrations).
Virginia Radar/Laser Calibration - Statutory Compliance Issues
A calibration certificate complies with the most basic requirements of Virginia Code section 46.2-882 if: (1) it is an original or "true copy" (an explanation follows); (2) it shows when and by whom it was made, and (3) device was tested within six months prior to the date of the offense. These are issues that should be examined in every reckless driving case. Failure to comply with each of the foregoing requirements means the officer's calibration is not admissible. As a result, the officer may be unable to prove what speed you were traveling. These issues arise much more often with certain police forces and much less often with others. However, even if the calibration complies with these requirements, it may still be inadmissible for other technical reasons. There are numerous other arguments that can be made based on the language of Virginia Code Section 46.2-882. However, it is extremely important to recognize that some judges accept these arguments and some do not. Therefore, I cannot stress enough how important it is that the attorney handling your case have the appropriate level of local experience.
Virginia Radar/Laser Calibration - Form Issues
There are many issues that can and do arise concerning calibration certificates. One example is the "true copy" term of art mentioned earlier. What this means is that if the calibration is a copy of the original, it must be a "true copy." According to the Virginia Code, a number of documents can constitute a true copy. One document that cannot be a true copy, however, is a copy made by a police department of an original document that the department did not create themselves. This is important because some police departments do not self-calibrate. They hire outside, private companies to calibrate their radar and laser machines. They receive a small number of originals of the calibration report - far too few to be given to all the officers who use those units and need a calibration to take to court. Therefore, they make photocopies of the calibrations. While they attempt to certify the copies, the fact that the copies are of a document the department itself did not create means that the photocopy is not a true copy under the statute. Therefore, with a properly articulated objection, this type of calibration should not come into evidence. While some attorneys address this issue and raise the proper objection, some do not.
Continue to Part B to read the second part of this article.
Fairfax Reckless Driving Lawyer with Experience
Call 703-556-0004 or email through our Contact Us page to schedule a free, no-obligation consultation with a highly experienced Fairfax Virginia reckless driving defense lawyer and reckless driving specialist. Kyle Manikas will analyze your Fairfax case from the perspective of a former prosecutor who has an inside understanding of the Fairfax system you will face.