What’s Next for Improper Driving Initiative

What’s Next for Improper Driving Initiative

Bill to Help Virginia Motorists and Reduce Court Burdens Killed in Senate Committee.

A bill in the Virginia General Assembly that would establish improper driving as a lesser traffic violation was voted down in the Senate Courts of Justice Committee on Jan 30.

The General Assembly’s polite phraseology for killing a bill is to move that it be “passed by indefinitely”, which means the committee will not take it up again.  So was the fate of SB 1406, but some of its proponents are already talking about how and when to revive the initiative.

The 9-6 vote on SB 1406 was along party lines, with all Republicans voting to kill the bill, and all Democrats voted nay.  The partisan vote was unusual since the Senate co-patrons of the bill are Republicans – Jill Holtzman (R-33) and Dick Black (R-13).  Both represent Loudoun County, as does Sheriff Mike Chapman (R), a strong supporter of the bill. Among those voting against it was Bryce Reeves (R-17), Vogel’s rival in a testy battle for the Republican nomination for Lt. Governor this year.  Seven of the nine Senators voting against the bill are also lawyers.

Loudoun County Board Chair Phyllis Randall (D-At Large) and Vice Chairman Ralph Buona (R-Ashburn) were in Richmond on county business and observed the defeat of SB 1406. Loudoun supervisors were aware of the bill and followed it with interest after expressing reservations about adopting a local ordinance without General Assembly guidance or permission.  Seven other area jurisdictions — the counties of Arlington, Fairfax , Prince William, Stafford and Spotsylvania, and the cities of Alexandria and Fairfax — already do what SB 1406 was seeking to codify in state law.

Some with reservations about the bill cited a Virginia Attorney General’s opinion from May 14, 1979, as a concern.  That opinion stated that a charge of failure to pay full time and attention is similar to improper driving and therefore duplicative, but it’s not clear that the opinion is dispositive.

Chapman believes the Senate Committee did not act in the best interests of the public, and would like the matter reconsidered in some manner.

“Add taking a day off for court, increased insurance premiums, attorney and court costs, and the fine, and the price of a reckless driving charge — even if reduced — can be insurmountable for some drivers,” said Chapman. “All of this is not necessary in every case.”

Loudoun Commonwealth’s Attorney Jim Plowman, who opposed the change when it was discussed with county supervisors last year, did not respond to the Tribune’s request for a comment.

Asked about the merits of the bill on Feb. 7, Buona agreed with Chapman.

“In my view, the deputies on the scene don’t have the discretion necessary to determine if it’s a lesser offense and instead they have to charge with reckless.  Because reckless is such a serious charge, it forces people to have to hire attorneys and all these other things and then hope the court or the Commonwealth’s Attorney will negotiate reckless down to a lesser charge.  I believe personally that deputies should have some discretion when it isn’t egregious to charge something that isn’t the extreme of reckless where they have to take off of work and spend a few thousand dollars on attorneys,” he said.

Buona also described the constraint generally felt by the board, and why members were hoping the General Assembly would act.

“There are jurisdictions that have created ordinances for that lesser offense. Our view is that we do not have the authority, nor do they, to have those ordinances.  We’re not trying to nullify their ordinances. If we do an ordinance, we want to make sure it’s truly codified in the Board of Supervisor’s authority to do so.  There’s some strong opinions that those ordinances in those other jurisdictions are not necessarily valid because the governing body doesn’t necessarily have the authority to create that ordinance,” he said.

“We’re trying to do it the right way,” Buona said. “We’re not trying to sabotage the ordinances of our neighbors.  That’s the last thing we want to do. We’re just saying if we’re going to do one, we want to make sure we’re doing it right.”

For now, Loudoun motorists will not have the option of being charged with a lesser offense.  A reckless driving charge is a Class 1 misdemeanor subject to a fine up to $2,500 and one year in jail.  It’s a mandatory court appearance, often with a defense lawyer, with the motorist hoping to get the charge reduced to improper driving by the judge, or on request of the Commonwealth’s Attorney.

Background to the Senate Vote

For months, Chapman had urged that Loudoun’s deputies be given the option of charging a motorist with something less than reckless driving when there are lesser circumstances.  This would reduce the automatic burdens on the judicial system, mean less of a need to hire defense counsel, and lower the costs to motorists and the points assessed against them, he has argued. The Virginia Sheriffs Association agreed, and backed the legislation in Richmond.

“It’s a shame it didn’t get through committee, because certainty when I talk to citizens in Loudoun and elsewhere they think this is a smart way to go about it,” Chapman said.  “Considering our deputies are prepared to make life and death decisions every day, I believe we are certainly capable of distinguishing the difference between reckless driving and improper driving.”

SB 1406 would have established improper driving as a lesser traffic infraction punishable by a fine of $300, and would not require a court appearance.  While current law includes a mechanism by which a person charged with reckless driving may instead be found guilty of the lesser charge of improper driving, that would have to be determined by a judge after the intervention of the local Commonwealth’s Attorney and the person charged with the offense or their defense counsel.  That’s a more laborious and complex process, mandates a court appearance, and is more costly to all parties.  The bill would have left the current mechanism in place such that the Commonwealth to reduce a charge of reckless driving to improper driving, while giving deputies the discretion to issue a lesser charge in the first instance.

The full text of the bill reads as follows.  Proposed deletions are shown with a strikethrough, and additions in italics.

1. That § 46.2-869 of the Code of Virginia is amended and reenacted as follows:

§ 46.2-869. Improper driving; penalty.

Notwithstanding the foregoing provisions of this article, upon A. Any person who drives a vehicle on any highway while failing to provide the attention necessary for the safe operation of the vehicle but when such conduct does not constitute reckless driving is guilty of improper driving. Improper driving is punishable as a traffic infraction punishable by a fine of $300.

B. Upon the trial of any person charged with reckless driving where the degree of culpability is slight, the court in its discretion may find the accused not guilty of reckless driving but guilty of improper driving. However, an attorney for the Commonwealth may reduce a charge of reckless driving to improper driving at any time prior to the court’s decision and shall notify the court of such change. Improper driving shall be punishable as a traffic infraction punishable by a fine of not more than $500.

“Although this legislation could have a possible revenue impact from fines associated with additional convictions, it is impossible to determine the extent of the impact at this time,” according to the fiscal impact statement that accompanied the filing of the bill.  “Additionally, by reducing the fine for improper driving to $300 from a maximum of $500, this legislation could reduce the revenue collected from improper driving convictions. Any possible fine revenue derived from this legislation will be deposited in the Literary Fund,” the statement added.