The Virginia Court of Appeals says today that improper driving is not a lesser included offense of reckless driving by speed.
The defendant, accused of driving more than 80 miles per hour, presented a jury instruction based on Virginia Code Sec. 46.2-869, which allows a conviction for improper driving rather than reckless driving “where the degree of culpability is slight.”
The prosecutor countered that reckless driving by speed is a strict liability offense with no provision for degrees of culpability. The judge inLoudoun County agreed with the prosecution. Appellate Judge Rossie D. Alston Jr. had two other rationales for siding with the commonwealth. “Every commission of reckless driving by speed does not also constitute a commission of improper driving,” Alston wrote for a unanimous three-judge panel. “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.”
Moreover, Sec. 46.2-869 vests authority to reduce a charge to improper driving in the judge and the prosecutor but not give it to a jury, Alston said.
By Alan Cooper