Is one guilty of Reckless Driving simply by having a car accident?

Accidents happen. However, some Virginia police officers routinely cite all motorists who they think caused an accident with the crime of Reckless Driving. Is being in an accident a crime? Briefly stated, no.

Reckless Driving is a Class 1 misdemeanor. A relatively serious offense, the crime is on the same level as DUI, Petit Larceny, and Assault & Battery. The maximum punishment is up to a year in jail, a $2,500 fine, and a 6 month license suspension.  The statute is Virginia Code sec. 46.2-852.

However, the Supreme Court of Virginia has held that the mere happening of an accident, alone, is no basis to support a Reckless Driving conviction. The case is Powers v. Commonwealth, 211 Va. 386 (1970). They key word in this paragraph is “alone.” If the government has evidence of other reckless behavior leading up to the accident then a conviction could stand.

For example, if one falls asleep and is in a collision, that could be Reckless Driving. Kennedy v. Commonwealth, 1 Va. App. 469 (1986). (One must be on notice of the dangerous level of fatigue, however).  See Hargrove v. Commonwealth, 10 Va. App. 618 (1990).

A relatively common fact pattern is one where the police investigate a traffic accident, learn that alcohol is involved, but cannot prosecute a DUI for some reason. Instead, they cite the motorist with Reckless Driving. Here are some cases where that strategy did not work and the defendants were acquitted.  The reason is that Reckless Driving is not a “status offense.”  The prosecutor needs to prove actual reckless behavior, not a mere condition that appears to render reckless behavior likely.  See Thompson v. Commonwealth, 27 Va. App. 720 (1998) (a bad single car accident, plus a strong odor of alcohol, plus failed field sobriety tests, plus admission to the consumption of six drinks is not Reckless Driving); Hall v. Commonwealth, 25 Va. App. 352 (1997) (a car stopped in a travel lane, plus the driver passed out, plus a strong odor of alcohol, plus open containers of alcohol, plus a 0.17 breath test is not Reckless Driving); and Bacon v. Commonwealth, 220 Va. 766 (1980) (a single vehicle accident, plus and admission of two drinks, plus an odor of alcohol, plus a statement that another car forced the driver off the road is not Reckless Driving).