No jury trial right for improper driving charge

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Where defendant appealed his district court conviction of improper driving to the circuit court and demanded a jury trial, the demand is denied.

“There is no federal constitutional right to a jury trial as improper driving is not punishable by more than six months in jail.”

Statutes

“Code of Virginia § 18.2-8 provides: ‘Offenses are either felonies or misdemeanors[.] … Traffic infractions are violations of public order as defined in § 46.2-100 and not deemed to be criminal in nature.’  Thus a traffic infraction, a creature of statute, is neither a ‘criminal prosecution’ nor an ‘offense’ under Article I, § 8, and there is no constitutional right to trial by jury for one.

“There is, however, a statutory right to a jury trial for traffic infractions. Code of Virginia § 19.2-258.1 provides, in part: ‘For any traffic infraction case appealed to a circuit court, the defendant shall have the right to trial by jury.’

“Norfolk City Code § 25-223, which is based on Code of Virginia § 46.2-869, provides: ‘Notwithstanding the foregoing provisions of this article, 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. Improper driving shall be punishable as a traffic infraction punishable by a fine of not more than five hundred dollars ($500.00).’

“In Chibikom v. Commonwealth, 54 Va. App. 422, 680 S.E.2d 295 (2009), the Court of Appeals held improper driving is not a lesser included offense of reckless driving, and that a defendant charged with reckless driving was not entitled to a jury instruction on improper driving. The Court also held the leniency available under the improper driving statute can only be granted by the ‘court in its discretion’ or the prosecutor.

“In construing two apparently inconsistent statutes dealing with the same subject, the more specific prevails over the more general. …

“There is no constitutional or statutory right to trial by jury on a charge of improper driving.”

City of Norfolk v. Kitacart, Record No. CR22-670, Sept. 21, 2022. (Order) Circuit Court for the City of Norfolk. (Martin). VLW 022-8-066, 4 pp.