While less common than the charge of driving while intoxicated, under some circumstances a police officer will charge a driver with reckless driving that is drinking/intoxication related. This typically occurs when a suspect admits to drinking or takes a preliminary breath test on the side of the road but blows below a .08, and the police officer decides not to go forward with a full fledged DUI charge and issue a summons for reckless driving instead.
Virginia Code 46.2-392 specifically states that “any person convicted of a reckless driving offense which the court has reason to believe is alcohol-related or drug-related may be required as a condition of probation or otherwise to enter into and successfully complete an alcohol safety action program.” This would lead one to believe that alcohol use could be the basis for a reckless driving conviction. However, the reckless driving statute itself defines the crime as driving “a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person.” The statute focuses on actual driving behavior, not the mental state of the driver.
The Virginia Court of Appeals has ruled on this exact issue in two cases, holding squarely that evidence of intoxication alone, without more, can not be the basis for a reckless driving conviction. In both cases, there had been an accident with no witnesses and evidence had been introduced indicating that the driver of the vehicle was intoxicated. The court held that without evidence as to what caused the accident, it could not assume that the defendants’ intoxication, or any fault of the driver whatsoever, was the cause. It did hold, however, that intoxication could be considered as one factor among many in determining whether a defendant’s driving behavior amounted to reckless driving.
This also draws out another important distinction – intoxication and drinking. The Virginia Court of Appeals ruled recently in Burnside v. Commonwealth that intoxication is what can be considered as a factor among many in a reckless driving case. Drinking in and of itself can not. This becomes important in so much as what presumptions arise at various levels of blood alcohol content. At a .05 blood alcohol content or below, there is actually a presumption that the defendant is not intoxicated. The Commonwealth would have to introduce evidence of intoxication sufficient to overcome that burden, otherwise the drinking itself could not be considered as evidence against the defendant for the purposes of reckless driving.
In addition to this hurdle for the prosecutor, there are also a number of reasons why a preliminary breath test should not be admitted against a defendant at trial in a reckless driving case. The preliminary breath test is authorized by statute for the explicit purpose of a “preliminary analysis of the alcoholic content of the blood of a person suspected of having committed” the offense of driving while intoxicated. It can not be used at trial to prove guilt in the case of driving while intoxicated, only for the police officer’s determination of probable cause. This is because the device is notoriously unreliable and inaccurate. It is not stored or maintained in a uniform manner or calibrated on any measured and consistent basis. Not only would the government be tasked with establishing its reliability and accuracy under the particular circumstances of each case, there is also a strong argument that it should not be admissible in any reckless driving case on purely statutory grounds.
The attorneys at Henson Pachuta, PLLC are experienced with cases of drinking related reckless driving and can leverage that experience in your case. We offer free consultation by phone at 703-822-4701 or at our office at 4011 Chain Bridge Road, Suite 200, Fairfax, Virginia, 22030.