Reckless Driving Virginia Speed 46.2-862 Improper Driving 46.2-869 Statute

Reckless Driving Virginia Speed 46.2-862 Improper Driving 46.2-869 Statute

DORIS S. CHIBIKOM v. COMMONWEALTH OF VIRGINIA

COURT OF APPEALS OF VIRGINIA

54 Va. App. 422

Chibikom proffered a jury instruction containing the reckless driving by speed offense under Code 46.2-862. In addition, her proposed instruction included language closely tracking Code 46.2-869, that is, that anyone found guilty of reckless driving, but with slight culpability, could instead be found guilty of improper driving. The Commonwealth of Virginia responded by arguing that improper driving is not a lesser-included offense of reckless driving by speed. Specifically, the Commonwealth contended that reckless driving by speed is a strict liability offense and the statute prohibiting reckless driving by speed does not refer to degrees of culpability. The trial court agreed with the Commonwealth and denied Chibikom's proposed instruction. The trial court instructed the jury in accord with the Commonwealth's proffered instruction.

Issue:

Whether the trial court erred in determining the improper driving is not a lesser-included offense of reckless driving by speed?

The Court held that "Upon our review of Code 46.2-869, it is clear that improper driving is not a lesser-included offense of reckless driving by speed. Every commission of reckless driving by speed does not also constitute a commission of improper driving. In addition, improper driving is not composed entirely of the elements of reckless driving by speed. Improper driving requires an additional finding of slight culpability, an element excluded from the reckless driving by speed statute. Thus, we conclude that improper driving is not a lesser-included offense of reckless driving by speed. The plain and unambiguous reading of the improper driving statute makes clear that authority rests with the trial judge and not the jury to make the lesser degree of culpability determination. In the alternative, an attorney for the Commonwealth may reduce a reckless driving charge to improper driving at any time prior to the court's decision. Thus, only the trial judge, or the prosecutor before the verdict is rendered, has the prerogative to reduce a reckless driving charge to improper driving under Code 46.2-869."

Hence the Court concludes that the improper driving is not a lesser-included offense of reckless driving by speed in Virginia.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content.

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