Reckless Driving, 37 MPH Over The Limit, Amended to Speeding

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DUI Attorney Mark Matney - Matney Law PLLC - Newport News - Williamsburg

Mark Matney

DUI & Traffic Court Lawyer

Reckless Driving, 37 MPH Over The Limit, Amended to Speeding

Reckless Driving Amended to Speeding
Posted by Mark Matney of Matney Law PLLC Newport News, VA
www.matneylawpllc.com
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If you were charged with Reckless Driving by Speed at 72 mph in a 35 mph zone, would you prefer an amendment to Speeding or a conviction with a weekend of jail?  Today in court I represented the first driver.  When you go to court, it is like a job interview in the sense that you only get one chance to make a first impression.

My client, charged with reckless driving, 72 in 35, helped me prepare for court by completing the driver improvement course and arranging for the necessary witness.  At court, I spoke with the law enforcement officer and reviewed the situation with him.  When we presented our case, I was able to inform the court that my client stopped immediately for the officer and was cooperative throughout the encounter.  Additionally, I pointed out that the officer did not object to the amendment of the charge.  I then helped my client explain his side and what he learned from being charged and completing a driver improvement course.  Finally, we presented my client’s clear driving history and the testimony of a witness who spoke on his behalf.

The judge amended the charge from the criminal misdemeanor of Reckless Driving to the traffic infraction of Speeding.  He noted that he considered the officer’s input, the testimony of the character witness, and my client’s driving history, driver improvement course and acknowledgement of responsibility.

On the other hand, I observed a driver who was charged with Reckless Driving by Speed at 70 mph in a 35 mph zone.  That driver was found guilty and sentenced to two days of jail.  Despite the lower speed he received a more severe result.  What was the difference?  The other driver did not prepare effectively for his day in court.  He did not present that the officer was willing for the charge to be amended, nor did he present a driver improvement course or any other mitigating factors.

Sometimes the judges decide that the speed is too high and they do not amend despite all of our preparations.  However, by planning in advance we can obtain the best result based on the facts and circumstances.

 

Can I use My Phone While Driving In Virginia

DUI DWI defense attorney Abigail Hockett

Abigail Hockett

Associate Attorney at Matney Law PLLC

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Can I Use My Phone While Driving in Virginia

Using My Cell Phone in Virginia
Posted by Abigail Hockett of Matney Law PLLC Newport News, VA
www.matneylawpllc.com
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Drivers in Virginia, starting on January 1, 2021, you will need to put your cell phone down. Virginia has some new rules to discourage distracted driving and restrict drivers from holding a cell phone or other handheld device while driving (See below, Virginia Code § 46.2-818.2).

The rule prohibits holding a cell phone or other handheld device while driving a moving vehicle on a road in Virginia. However, the rule does allow drivers to hold their phone or device when their vehicle is lawfully parked or stopped. Additionally, you may hold your phone when reporting an emergency. There are a few other exceptions, which are listed below.

Violation of this new rule is a traffic infraction. The first offense will carry a fine of $125. For any second or subsequent offense, it will cost you $250. If you are caught in a work-zone, there is a mandatory fine of $250.

If you have been charged with a traffic offense, contact our office to discuss your case. We look forward working with you to help you receive the best possible result for your situation.

§ 46.2-818. Use of Handheld Personal Communications devices in certain motor vehicles; exceptions; penalty. (effective January 1, 2021)

A. It is unlawful for any person, while driving a moving motor vehicle on the highways in the Commonwealth, to hold a handheld personal communications device.

B. The provisions of this section shall not apply to:
1. The operator of any emergency vehicle while he is engaged in the performance of his official duties;
2. An operator who is lawfully parked or stopped;
3. Any person using a handheld personal communications device to report an emergency;
4. The use of an amateur or a citizens band radio; or
5. The operator of any Department of Transportation vehicle or vehicle operated pursuant to the Department of Transportation safety service patrol program or pursuant to a contract with the Department of Transportation for, or that includes, traffic incident management services as defined in subsection B of § 46.2-920.1 during the performance of traffic incident management services.

C. A violation of this section is a traffic infraction punishable, for a first offense, by a fine of $125 and, for a second or subsequent offense, by a fine of $250. If a violation of this section occurs in a highway work zone, it shall be punishable by a mandatory fine of $250.

D. For the purposes of this section:

"Emergency vehicle" means:
1. Any law-enforcement vehicle operated by or under the direction of a federal, state, or local law-enforcement officer while engaged in the performance of official duties;
2. Any regional detention center vehicle operated by or under the direction of a correctional officer responding to an emergency call or operating in an emergency situation;
3. Any vehicle used to fight fire, including publicly owned state forest warden vehicles, when traveling in response to a fire alarm or emergency call;
4. Any emergency medical services vehicle designed or used for the principal purpose of supplying resuscitation or emergency relief where human life is endangered;
5. Any Department of Emergency Management vehicle or Office of Emergency Medical Services vehicle, when responding to an emergency call or operating in an emergency situation;
6. Any Department of Corrections vehicle designated by the Director of the Department of Corrections, when (i) responding to an emergency call at a correctional facility, (ii) participating in a drug-related investigation, (iii) pursuing escapees from a correctional facility, or (iv) responding to a request for assistance from a law-enforcement officer; and
7. Any vehicle authorized to be equipped with alternating, blinking, or flashing red or red and white secondary warning lights pursuant to § 46.2-1029.2.

"Highway work zone" means a construction or maintenance area that is located on or beside a highway and is marked by appropriate warning signs with attached flashing lights or other traffic control devices indicating that work is in progress.

E. Distracted driving shall be included as a part of the driver's license knowledge examination.

Two ASAP Non-Compliance Cases Dismissed This Week

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DUI Attorney Mark Matney - Matney Law PLLC - Newport News - Williamsburg

Mark Matney

DUI & Traffic Court Lawyer

Two ASAP Non-Compliance Cases Dismissed This Week

Two ASAP Non-Compliance Cases
Posted by Mark Matney of Matney Law PLLC Newport News, VA
www.matneylawpllc.com
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This week judges in two different cities dismissed ASAP show cause violations against my clients.  Both cases involved someone who triggered an ignition interlock violation soon after the machine was installed.  They completed six months with no new interlock problems before their court dates and remained in full compliance with respect to classes and payments.  It is important when dealing with an ASAP violation of any type to be straightforward with the ASAP case manager, to avoid any new issues, and to maintain strict compliance after the incident.

Dismissal of Brandishing a Firearm

DUI Attorney Mark Matney - Matney Law PLLC - Newport News - Williamsburg

Mark Matney

DUI & Traffic Court Lawyer

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Dismissal of Brandishing a Firearm

Defending against a charge of brandishing a firearm requires carefully evaluating the language of the Virginia Code and comparing it to the facts and circumstances of the case.  The brandishing code section applies whenever someone points or handles a firearm in a manner that reasonably induces “fear in the mind of another.”  There is a exception for self-defense.  In our case, my client was charged with brandishing a firearm by the police officer who arrived and saw him pointing a gun at his friend.  At the trial, the friend was not called as a witness.  After cross-examining the police officer and questioning two neutral witnesses, it became clear that the person who the gun was pointed toward had been asked to leave the property twice and that one of the witnesses had actually escorted him from the property.  It was also evident that he supposed victim had continued to advance toward my client despite being told to stop and to leave the property.  The officer and the witnesses did not provide any statements that indicated that the gun had actually “induce[d] fear in the mind of another of being shot or injured.”  In fact, the continued advancing toward the weapon showed that he was not afraid.  Other factors that the judge considered were the intoxication of the supposed victim and that my client was the one who had called the police.  Brandishing is not to be taken lightly, but this charge can be successfully defended by analyzing the facts and challenging whether the officer or prosecutor has proven the elements set forth in the Virginia Code.

Virginia Code § 18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.

A. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured. However, this section shall not apply to any person engaged in excusable or justifiable self-defense. Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor or, if the violation occurs upon any public, private or religious elementary, middle or high school, including buildings and grounds or upon public property within 1,000 feet of such school property, he shall be guilty of a Class 6 felony.

Is driving over 80 mph still considered Reckless Driving by Speed in Virginia?

DUI DWI defense attorney Abigail Hockett

Abigail Hockett

Associate Attorney at Matney Law PLLC

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Is driving over 80 MPH still considered Reckless Driving by Speed in Virginia?

Driving Over 80 MPH
Posted by Mark Matney of Matney Law PLLC Newport News, VA
www.matneylawpllc.com
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Yes and No. On July 1, 2020, Virginia changed the Reckless Driving statute to raise the presumptive speed for reckless driving from 80 mph to 85 mph regardless of the speed limit.  However, the legislature kept the language that speeding 20 mph over the limit is considered Reckless Driving (e.g., driving 55 mph or more in a 35 mph zone).  The result is that if you are driving at 85 mph or more, you can be charged with reckless driving even in a 70 mph zone.  However, you can also be charged with reckless driving if your speed is more than 20 mph over the limit no matter what the speed limit is.

Reckless Driving is a serious criminal charge.  It is a class 1 misdemeanor which means that there is the possibility of a jail sentence, a significant fine and even a license suspension. We would gladly help you achieve the best possible result for your situation.

The Code section for Reckless Driving by Speed is:  § 46.2-862. Exceeding speed limit.

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.

Submitted by attorney Abigail Hockett.

Expungement of Public Intoxication and Petit Larceny Charges

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Lawyer Mark Matney of Matney Law PLLC - Newport News Virginia - DUI and Traffic Court Lawyer

Mark Matney

DUI - DWI Lawyer

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Expungements of Trespassing, Public Intoxication & Petit Larceny Charges.

Posted by Mark Matney
Matney Law PLLC Newport News VA
www.matneylawpllc.com


I recently obtained expungements for four clients with prior charges of trespassing, public intoxication, and petit larceny. Sometimes people ask why they should seek expungement when the charge was dismissed. When your criminal history is searched, everything you have ever been charged with appears in the record. It does not matter whether you were found guilty or not guilty - the fact of being charged will continue to appear. This means that you could have to explain the dismissed charge to a potential employer. An expungement removes dismissed charges from your criminal record and avoids the awkwardness of having to explain these charges to employers or others who are interested in your record.

Many employers believe that where there is smoke, there is fire. If they have to choose between a potential employee with a clear criminal history and someone who was charged with a misdemeanor, then they select the person whose record is clear.

To qualify for an expungement, the charge must have been dismissed. The dismissal can be accomplished by not guilty, nolle prosequi or other dismissal. However, dismissals after a first offender program or a finding that the evidence was sufficient are not eligible.

Not Guilty of DWI / DUI, 2nd Offense

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Lawyer Mark Matney of Matney Law PLLC - Newport News Virginia - DUI and Traffic Court Lawyer

Mark Matney

DUI - DWI Lawyer

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Not Guilty of DWI / DUI, 2nd Offense

Posted by Mark Matney
Matney Law PLLC Newport News VA
www.matneylawpllc.com


This month I helped a client charged with DWI 2nd offense and Refusal 2nd offense. To achieve a not guilty decision, we had to show that the evidence was not sufficient for the judge to find my client guilty beyond a reasonable doubt. In this case, my client made good decisions during his contact with the police that helped me win his trial.

The police approached my client due to an accident. He cooperated with the police, but refused to participate in any field sobriety tests and declined a handheld preliminary breath test (PBT). A driver is not required to complete these tests. He also refused to submit to the formal breath test on the Intoxilyzer EC/IR II at the police station. Refusing a breath test results in an additional charge of Refusal. However, it also avoids a presumption of being under the influence. Additionally, the lack of a blood alcohol level and field tests meant that the officer was limited to testifying about my client’s appearance. When combined with a detailed timeline of my client’s activities and a description of his medical issues, the judge concluded that there was a lack of evidence that my client was under the influence at the time of the driving.

The dismissal of the 2nd offense DWI avoided 20 days mandatory minimum jail, three years license suspension, $500 minimum fine and completion of ASAP. Although refusing the breath test helped him avoid the DWI conviction, it did result in a refusal conviction that he appealed.

 

What happens if the officer does not appear for court?

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Lawyer Mark Matney of Matney Law PLLC - Newport News Virginia - DUI and Traffic Court Lawyer

Mark Matney

DUI - DWI Lawyer

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What happens if the officer does not appear for court?

Posted by Mark Matney
Matney Law PLLC Newport News VA
www.matneylawpllc.com


It depends. If the officer is on a list for an approved absence, then the judge will usually continue the case to the officer’s next available date. This applies to officers who are in training, called up for military duty, or sick.

However, sometimes a judge will dismiss a case even when the officer is on an approved absence list if the officer was not available for court previously. For example, in one Newport News case this month the judge dismissed the charge of reckless driving by speed, 56/35, when the officer was on sick leave for two separate court dates.
When police officers leave their police departments, their cases are usually dismissed. This week a Hampton officer’s departure resulted in the dismissal of Reckless Driving – Accident and a Newport News officer’s resignation resulted in the dismissal of Reckless Driving - Parking Lot.

What if the officer doesn’t have the radar calibration certificate?

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Lawyer Mark Matney of Matney Law PLLC - Newport News Virginia - DUI and Traffic Court Lawyer

Mark Matney

DUI - DWI Lawyer

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What if the officer doesn't have the
calibration certificate for the radar or lidar?

Posted by Mark Matney
Matney Law PLLC Newport News VA

www.matneylawpllc.com

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The law enforcement officer must provide a certificate of accuracy that is dated within six months preceding the date the motorist was stopped. Otherwise, the speeding or reckless driving by speed may be dismissed. The officer is not required to show the certificate to the judge unless the motorist or his lawyer requests it.

I regularly review the law enforcement officer’s calibration certificates as part of representing my clients. The officers are professional and usually have their documents, but in the past two weeks two clients have benefitted from dismissals when officers did not having the necessary certificates. In one case, speeding 38/25 in Newport News, the officer did not have his lidar certificate. In the other case, speeding 45/30 in Hampton, the officer’s radar certificate was outdated.

Not Guilty of Speeding, 43 in 30

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Lawyer Mark Matney of Matney Law PLLC - Newport News Virginia - DUI and Traffic Court Lawyer

Mark Matney

DUI - DWI Lawyer

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Matney Law - DUI Lawyers - Traffic Court Attorneys - Williamsburg, Newport News, Hampton, YorktownReckless Driving by Speed, 43 in 30

Posted by Mark Matney of Matney Law PLLC Newport News VA
www.matneylawpllc.com
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This morning my client’s speeding case was dismissed! The officer was operating stationary Lidar (laser) in a 35 mph zone just past the point where the speed limit changed from 35 mph to 30 mph.

When I asked the officer for the certification for his lidar equipment, I found that he did not have a certificate that covered the date when my client was stopped. The Virginia Code provides that “no calibration or testing of such device shall be valid for longer than six months” (Sec. 46.2-882). The officer’s certificate must be dated during the six months preceding the date of the stop. It cannot be dated after the stop or more than six months before the stop.