Revealed & Explained: Virginia Reckless Driving Law – Not Just a Speeding Ticket

In Virginia, what looks like a regular speeding ticket may be much more than points on your record.

If your speed was either 20 miles over the speed limit, or if you were speeding above 80 miles per hour, then your “speeding ticket” is likely a Virginia Uniform Summons for Reckless Driving. If you are charged with Reckless Driving, you are charged with a CRIME in Virginia. Reckless Driving is a Class 1 Misdemeanor under Virginia VA Code § 46.2-862 “Exceeding speed limit” – the same level of offense in Virginia as a DUI / DWI charge. That yellow ticket that you signed is actually an alternative version of an arrest for reckless driving. RECKLESS DRIVING ISN’T YOUR EVERYDAY SPEEDING TICKET.


Reckless Driving is a very serious offense and can result in serious consequences for purposes of civilian employment, getting into universities, government employment, obtaining / maintaining a security clearance, military (Army, Marines, Navy, Air Force) punishment, admission to a state bar, law enforcement / police officer employment, and immigration and naturalization, amongst others.

A maximum penalty for a Reckless Driving conviction may result in:
(1) up to 1 year in jail,
(2) up to 6 months suspension of your driver’s license / privileges,
(3) a total of 6 points on a Virginia driver’s license, and,
(4) up to a $2,500.00 fine.

While no one would plead guilty to a DUI / DWI (probably because it is a more popular or commercial crime) drivers unintentionally plead guilty to Reckless Driving, a crime of the same criminal magnitude as a DUI, on a much more frequent basis. Due to the serious nature of a VA Reckless Driving offense, it is important to fight the “ticket” for Reckless Driving in court, and not just pay it when you get home. By paying the Reckless Driving “ticket” before your court date, you are actually pleading guilty to the Class 1 Misdemeanor offense. The first thing that you should do after you get home is call a lawyer and discuss the details of your case. Your circumstances may make you eligible for various punishment reductions and charge reductions, and if you are really lucky, maybe even dismissal of the charge or a non-prosecution of the charge!

LIST OF VARIOUS VIRGINIA RECKLESS DRIVING OFFENSES

1) The most common charge is for “Reckless Driving by Speed.” This charge applies to speeding 20 miles over the speed limit and/or driving above 80 miles per hour in Virginia. This is charged under Virginia VA Code Section 46.2-862 and is explained above.
2) The second most common charge in Virginia is for “Reckless Driving Generally.” This charge applies to the manner of your driving and is evaluated by whether your driving manner endangered either a person or property. This is charged under Virginia VA Code Section 46.2-852.
3) “Reckless Driving – Driving vehicle which is not under control” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who drives a vehicle which is not under proper control or which has inadequate or improperly adjusted brakes. This is charged under Virginia VA Code Section 46.2-853.
4) “Reckless Driving – Passing on or at the crest of a grade or on a curve” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who, while driving a vehicle, overtakes and passes another vehicle proceeding in the same direction, on or approaching the crest of a grade or on or approaching a curve in the highway, where the driver’s view along the highway is obstructed, except where the overtaking vehicle is being operated on a highway having two or more designated lanes of roadway for each direction of travel or on a designated one-way roadway or highway. This is charged under Virginia VA Code Section 46.2-854.
5) “Reckless Driving – Driving with driver’s view obstructed or control impaired” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who drives a vehicle when it is so loaded, or when there are in the front seat such number of persons, as to obstruct the view of the driver to the front or sides of the vehicle or to interfere with the driver’s control over the driving mechanism of the vehicle. This is charged under Virginia VA Code Section 46.2-855.
6) “Reckless Driving – Passing two vehicles abreast” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who passes or attempts to pass two other vehicles abreast, moving in the same direction, except on highways having separate roadways of three or more lanes for each direction of travel, or on designated one-way streets or highways. This is charged under Virginia VA Code Section 46.2-856.
7) “Reckless Driving – Driving two abreast in a single lane” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who drives any motor vehicle, including any motorcycle, so as to be abreast of another vehicle in a lane designed for one vehicle, or drives any motor vehicle, including any motorcycle, so as to travel abreast of any other vehicle traveling in a lane designed for one vehicle. This is charged under Virginia VA Code Section 46.2-857.
8 ) “Reckless Driving – Passing at a railroad grade crossing” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who overtakes or passes any other vehicle proceeding in the same direction at any railroad grade crossing or at any intersection of highways unless such vehicles are being operated on a highway having two or more designated lanes of roadway for each direction of travel or unless such intersection is designated and marked as a passing zone or on a designated one-way street or highway, or while pedestrians are passing or about to pass in front of either of such vehicles, unless permitted so to do by a traffic light or law-enforcement officer. This is charged under Virginia VA Code Section 46.2-858.
9) “Reckless Driving – Passing a stopped school bus” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who fails to stop, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children, the elderly, or mentally or physically handicapped persons, and to remain stopped until all the persons are clear of the highway, private road or school driveway and the bus is put in motion. This is charged under Virginia VA Code Section 46.2-859.
10) “Reckless Driving – Failing to give proper signals” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who fails to give adequate and timely signals of intention to turn, partly turn, slow down, or stop. This is charged under Virginia VA Code Section 46.2-860.
11) “Reckless Driving – Driving too fast for highway and traffic conditions” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who exceeds a reasonable speed under the circumstances and traffic conditions existing at the time, regardless of any posted speed limit. This is charged under Virginia VA Code Section 46.2-861.
12) “Reckless Driving – Failure to yield right-of-way” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who fails to bring his vehicle to a stop immediately before entering a highway from a side road when there is traffic approaching on such highway within 500 feet of such point of entrance, unless (i) a “Yield Right-of-Way” sign is posted or (ii) where such sign is posted, fails, upon entering such highway, to yield the right-of-way to the driver of a vehicle approaching on such highway from either direction. This is charged under Virginia VA Code Section 46.2-863.
13) “Reckless Driving – Reckless driving on parking lots” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who operates any motor vehicle at a speed or in a manner so as to endanger the life, limb, or property of any person: (1) On any driveway or premises of a church, school, recreational facility, or business property open to the public; or (2) On the premises of any industrial establishment providing parking space for customers, patrons, or employees; or (3) On any highway under construction or not yet open to the public. This is charged under Virginia VA Code Section 46.2-864.
14) “Reckless Driving – Racing” is another Reckless Driving charge. This charge applies to anyone driving in Virginia who engages in a race between two or more motor vehicles on the highways in the Commonwealth or on any driveway or premises of a church, school, recreational facility, or business property open to the public in the Commonwealth shall be guilty of reckless driving, unless authorized by the owner of the property or his agent. This is charged under Virginia VA Code Section 46.2-865. It is important to note the VA definition of racing, as police officers and lawyers alike tend to mistake speeding contests for actual racing as is defined by Virginia law. racing requires a pre-defined start point and pre-defined end point. Just because two cars are going very fast next to each other and trying to beat the other’s speed does not mean that in fact they are racing under this reckless driving code section.

All of these reckless driving tickets are punishes as Class 1 misdemeanor criminal offenses. the penalty is described above.

FEDERAL RECKLESS DRIVING OFFENSE

Another important factor about VA Reckless Driving is speeding along the GW Parkway in Alexandria, VA or any other Federal territory located in Virginia. Federal law punishes for Reckless Driving the way that it is defined in the Virginia code. The main difference is that the prosecutors in Federal Court in the Eastern District of Virginia (ED VA) is much more serious and having a Federal offense on your criminal record is considered more consequential for purposes of your criminal record. As stated before, first thing that you should do after you get home is call a lawyer and discuss the details of your case. Your circumstances may make you eligible for various punishment reductions and charge reductions, and if you are really lucky, maybe even dismissal of the charge or a non-prosecution of the charge!

RECENT VIRGINIA SUPREME COURT CASE DECISIONS RELATED TO RECKLESS DRIVING AND SPEEDING LAW

Cypress v. Commonwealth 09/16/2010 In criminal proceedings remanded from the Supreme Court of the United States for consideration in light of Melendez-Diaz v. Massachusetts, 557 U.S.

, 129 S.Ct. 2527 (2009), admission into evidence of certificates of chemical analysis pursuant to procedures set forth in former Code §§ 19.2-187 and 19.2-187.1, without presentation by the Commonwealth of testimony from the forensic analysts who prepared them, violated the defendants’ rights secured by the Confrontation Clause of the Sixth Amendment to the United States Constitution. In one of the cases in this appeal the judgment of the Court of Appeals affirming the conviction is reversed, the conviction is vacated, and the case is remanded for a new trial if the Commonwealth be so advised. In the other case, the error was harmless and the judgment of the Court of Appeals upholding the convictions is affirmed.

Spencer v. City of Norfolk 04/21/2006 (Revised 04/21/2006) In a reckless driving case, the Supreme Court has jurisdiction to hear the appeal where a term of incarceration was imposed, and then suspended, by the trial court. On the merits, the evidence was insufficient to sustain a conviction where the record did not demonstrate that the defendant was speeding so as to endanger a person, disregarded the consequences of her acts, or was indifferent to the safety of others. The judgment is reversed and the case is dismissed.

Reittinger v. Commonwealth 06/09/2000 The trial court erred in refusing to suppress certain evidence found during a search of a defendant who was detained by a deputy sheriff after a routine traffic stop without probable cause and without articulable suspicion for further investigation. The Court of Appeals erred in affirming the conviction, and the case is remanded.

VIRGINIA RECKLESS DRIVING CASE STUDY

MARGUERITE SPENCER v. CITY OF NORFOLK

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal we are asked to consider whether the
evidence is sufficient to sustain a conviction for a violation
of the reckless driving provision of the Norfolk City Code.
We also must determine as a threshold matter whether this case
is within this Court’s subject matter jurisdiction.

FACTS
We recite the facts along with all reasonable inferences
fairly deducible therefrom in the light most favorable to the
prevailing party in the proceedings below. Coles v.
Commonwealth, 270 Va. 585, 587, 621 S.E.2d 109, 110 (2005).
On November 19, 2003, Mary Parsons was babysitting
twelve-year-old Kelyn Cusson when Parsons’ dog jumped the
fence, and Parsons asked Cusson to retrieve the dog. Cusson
followed the dog into a neighbor’s yard. When she attempted
to put a leash on the dog, she heard a loud, long horn coming
from a car parked in the driveway of a house diagonally across
the street. Marguerite Spencer was in the car. The dog ran
into the street, and Cusson followed. Spencer drove the car
out of her driveway and in the direction of Parsons’ house.
Cusson “walked quickly” towards a van parked in front of
Parsons’ home. As Spencer passed Cusson at a “fast” rate of
speed, Cusson “felt the wind coming off the car” that “blew
her and caused her to step back.” Cusson estimated Spencer’s
car passed her at a distance of “about 3 feet.” Cusson then
joined Parsons on Parsons’ porch. Parsons called after
Spencer but although Spencer had stopped the car, she pulled
away and did not talk with Parsons. Spencer circled the block
twice before parking again in her driveway.
Spencer was charged with and convicted of reckless
driving in violation of Norfolk City Code § 25-217. The trial
court sentenced Spencer to 10 days imprisonment in the Norfolk
City Jail but suspended the sentence conditioned on Spencer’s
good behavior for a period of two years and having no contact
with Cusson or her mother. The trial court also imposed a
fine of $250.00. The Court of Appeals denied Spencer’s
petition for appeal by order, Spencer v. City of Norfolk,
Record No. 1312-04-1 (May 2, 2005). We awarded Spencer an
appeal.
As a threshold matter, we must determine whether this
appeal is within the category of cases that this Court may
consider; that is to say, does this Court have subject matter
jurisdiction? Morrison v. Bestler, 239 Va. 166, 170, 387
S.E.2d 753, 755 (1990) (“a court always has jurisdiction to
determine whether it has subject matter jurisdiction”). Code
§ 17.1-411 provides that this Court may hear an appeal of any
case in which a party is aggrieved by a final decision of the
Court of Appeals except in those cases in which the decision
of the Court of Appeals is made final by Code §§ 17.1-410 or
19.2-408. A judgment of the Court of Appeals is final under
Code § 17.1-410 in traffic infraction and misdemeanor cases
“where no incarceration is imposed.” Code § 17.1-410(A)(1).
The City argues that this Court does not have subject
matter jurisdiction to consider this appeal because the trial
court suspended Spencer’s jail sentence and therefore imposed
no incarceration. We disagree. The finality provisions of
Code § 17.1-410(A)(1) do not require physical confinement,
only the imposition of incarceration. In this case, the trial
court imposed a 10-day period of incarceration. The
subsequent suspension of the sentence does not eliminate the
imposition of the jail sentence and place this case in a
category of cases in which no incarceration is imposed.
Accordingly, we conclude that this appeal is within the class
of cases that we may consider. We now turn to the merits of
Spencer’s appeal.

Spencer was convicted of violating Norfolk City Code
§ 25-217, which substantially mirrors Code § 46.2-852 in
defining “reckless driving:”
Irrespective of the maximum speeds provided in
this article, any person who drives a vehicle
on any street or highway recklessly or at a
speed or in a manner so as to endanger the
life, limb, or property of any person shall be
guilty of reckless driving.

In Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628,
630 (1970), this Court held that ” ‘recklessly’ . . . imparts
a disregard by the driver . . . for the consequences of his
act and an indifference to the safety of life, limb or
property” and that speed alone does not constitute
recklessness unless it endangers life, limb, or property. In
applying these principles and determining whether the evidence
was sufficient to support the conviction, our rules of
appellate review require that we must affirm the conviction
unless it is plainly wrong or without evidence to support it.
Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998).
In this case, Cusson and Spencer were the only
eyewitnesses to the facts surrounding the driving at issue.
Their testimony does not demonstrate that Spencer was driving
erratically, nor does it indicate she lacked control of the
car. Cf. Miles v. Commonwealth, 205 Va. 462, 468, 138 S.E.2d
22, 27 (1964) (finding recklessness where driver drove
diagonally across road in front of police officer, forcing
officer to brake “violently” in order to avoid collision);
Sheckler v. Anderson, 182 Va. 701, 705-66, 29 S.E.2d 867, 868-
69 (1944) (finding recklessness where driver in residential
neighborhood maintained speed too fast to allow him to stop to
avoid emergency).
Spencer drove out of her driveway and proceeded up the
street. Cusson was aware of Spencer’s car before it left the
driveway because she heard the horn blowing. According to
Cusson’s testimony, she followed the dog into the street, the
dog ran back to Parsons’ house, and then Cusson walked to the
van parked in front of Parsons’ house. Thus, at the time the
“wind blew her,” Cusson was standing in the street near the
van parked in the street, and when Spencer passed Cusson, her
car was not near the curb but had to be in the travel lane of
the street, three feet beyond the parked van. Though Cusson
testified she had to “step back,” she claimed she did so
because of the wind, not because she feared injury or impact
with Spencer’s car. “Fast” driving alone, without the element
of endangering life, limb, or property, is not sufficient to
support a conviction for reckless driving. Powers, 211 Va. at
388, 177 S.E.2d at 630.
This record does not support a conclusion that Spencer
had a disregard for the consequences of her act, was
indifferent to the safety of others, or that her rate of speed
endangered Cusson. Therefore, we will reverse the judgment of
the Court of Appeals, vacate the conviction, and dismiss the
case.
Reversed and final judgment.

WHITE v. COMMONWEALTH of Virginia

Code § 19.2-294.1 provides that “[w]henever any person is charged with [driving under the influence of alcohol] ․ and reckless driving growing out of the same act or acts and is convicted of one of these charges, the court shall dismiss the remaining charge.”   Dennis Vernon White was convicted in the circuit court, following a de novo appeal, of driving while under the influence of alcohol (DUI) in violation of Code § 18.2-266.  White had previously pled guilty in the general district court to a speeding charge in violation of Code § 46.2-870 and Narrows Town Ordinance § 155-3 for driving at a speed of sixty miles per hour in a forty miles per hour zone.   The speeding charge arose from the same course of driving that gave rise to the DUI conviction.

On appeal, White asserts that the DUI prosecution and conviction were barred by the speeding conviction because, under Code § 46.2-862, the speeding conviction constituted a conviction for reckless driving.  Code § 46.2-862 provides that “a person shall be guilty of reckless driving who drives a motor vehicle ․ (iii) at a speed of twenty miles per hour or more in excess of ․ the applicable maximum speed limit[ ] [of] forty miles per hour or more.”   Thus, White contends, the provisions of Code § 19.2-294.1 required the circuit court to dismiss the DUI charge because he had already pled guilty and been convicted of an offense that is by statute deemed reckless driving.   We disagree and affirm the DUI conviction.

“Where the language of a statute is clear and unambiguous, we are bound by the plain statement of legislative intent.”  Commonwealth v. Meadows, 17 Va.App. 624, 626, 440 S.E.2d 154, 155 (1994);  see also Long v. Commonwealth, 7 Va.App. 503, 506, 375 S.E.2d 368, 369 (1988) (“If the language of a statute is plain and unambiguous ․, effect must be given to it regardless of what courts think of its wisdom or policy.”).   We must “take the words as written” in Code § 19.2-294.1  and give them their plain meaning.  Birdsong Peanut Co. v. Cowling, 8 Va.App. 274, 277, 381 S.E.2d 24, 26 (1989).

Under the plain and unambiguous terms of Code § 19.2-294.1, one may not be “charged” and “convicted” of both DUI and “reckless driving.”   A conviction of either DUI or reckless driving, whether in simultaneous or successive prosecutions, requires dismissal of the other charge if the other charge arose from the same act or acts.   Cf. Hall v. Commonwealth, 14 Va.App. 892, 900, 421 S.E.2d 455, 461 (1992) (en banc) (holding that Virginia’s double jeopardy statute, Code § 19.2-294, prohibits multiple convictions for separate offenses arising out of same act, except where convictions obtained in single prosecution).   However, reckless driving and speeding are separate and distinct offenses.

Reckless driving is chargeable and punishable under the provisions of Article 7 in the Motor Vehicle Code chapter on the regulation of traffic.   Reckless driving is a Class 1 misdemeanor, Code § 46.2-868, carrying with it the potential for a twelve month jail sentence and a fine of not more than $2,500.   See Code § 18.2-1(a).   Speeding, on the other hand, is chargeable and punishable under the provisions of Article 8 of the same chapter and is a traffic infraction punishable merely by a fine.   See Rule 3B:2.1  Nothing in the language of Code § 19.2-294.1 precludes the Commonwealth or a locality from convicting a person for both DUI and “speeding.”   If the legislature had intended to foreclose a person from being convicted for both DUI and another offense that might also constitute reckless driving, as argued by appellant, it could have expressed that intent in the language of Code § 19.2-294.1.   Under the express provisions of Code § 19.2-294.1, only a “conviction ” for reckless driving bars a prosecution for DUI;  a conviction for speeding, even if premised on an underlying act that may have warranted a conviction for reckless driving, does not implicate the bar of the statute.

Under appellant’s proposed construction of the statute, a person who drives between one and nineteen miles per hour over the speed limit while intoxicated could be convicted of both speeding and DUI, whereas the same intoxicated person driving twenty miles per hour over the speed limit could only be convicted of either reckless driving or DUI.   Appellant would have us construe Code § 19.2-294.1 in a way that would enable the intoxicated driver who minimally exceeded the posted speed limit to be punished more severely than the intoxicated driver who drove at a more excessive rate of speed.   We decline to construe the statute in a way which would lead to such an anomalous result.   See Shull v. Commonwealth, 16 Va.App. 667, 670, 431 S.E.2d 924, 925 (1993) ( “A statute should not be construed so that it leads to absurd results.”).   We hold that the provisions of Code § 19.2-294.1 do not bar the Commonwealth from convicting a person for DUI after the person was convicted of speeding, even where the charges arose out of the same course of driving and the act of speeding could have given rise to a charge and conviction for reckless driving under Code § 46.2-862.

In the present case, appellant was charged and convicted for “speeding” under a town ordinance incorporating Code § 46.2-870.   He was not “convicted” of reckless driving.   Cf. Harris v. City of Virginia Beach, 19 Va.App. 214, 217, 450 S.E.2d 401, 403 (1994) (defendant was charged and convicted of driving under the influence and “reckless driving”).   Although the Commonwealth could have prosecuted appellant for reckless driving under Article 7 provisions for that offense, it chose instead to prosecute him on the offense of speeding under Article 8.   See Spickard v. City of Lynchburg, 174 Va. 502, 505, 6 S.E.2d 610, 611 (1940) (“The same facts may constitute two or more distinct offenses, different in kind as well as in degree.”);   see also Kauffmann v. Commonwealth, 8 Va.App. 400, 410, 382 S.E.2d 279, 284 (1989) (“It is well established that the choice of offenses for which a criminal defendant will be charged is within the discretion of the [prosecutor].”).  Accordingly, the Commonwealth was not precluded from convicting appellant for both DUI and speeding  for driving sixty miles per hour in a forty miles per hour zone.   We affirm the DUI conviction.
Affirmed.

FOOTNOTES
1.  A conviction for reckless driving based on speeding also carries with it the additional sanction that the trial judge may suspend an operator’s license for a period of not more than six months.  Code § 46.2-393.

LASH v. COUNTY OF HENRICO.
Court of Appeals of Virginia.

A rehearing en banc was granted in this appeal from a decision of the panel in which there was a dissent.[1] The appeal is from convictions of reckless driving and eluding a police officer arising out of a single series of events. The defendant contends that, while he is guilty of one of the offenses, conviction of the other is barred by Code § 19.2-294. We conclude that, because conviction for each offense was based on acts separate and distinct from those involved in the other offense, Code § 19.2-294 does not apply. Therefore, we affirm.

The charges against the defendant arose out of a traffic stop. A Henrico County police officer stopped the defendant and issued him a summons for driving on defective tires and for failing to have a front license plate. The officer told the defendant that his automobile was unsafe and that he would have to park it. The defendant responded by telling the officer that he could not tell him what to do, ran back to his vehicle, and drove away. When he left, he accelerated so quickly that his automobile left sixty to seventy feet of tire marks on the highway.

A high speed chase followed. The officer, using his siren and blue lights, followed the defendant at speeds of sixty to seventy miles per hour in a posted thirty-five mile per hour speed zone. Finally, the defendant drove through a red stop signal and into a supermarket parking lot where he drove through the lot at speeds of thirty to forty miles per hour. Upon apprehending the defendant, the officer charged him with eluding a police officer and reckless driving.

The County argues that the defendant is barred under Rule 5A:18 from asserting on appeal that the provisions of Code § 19.2-294 bar his conviction of both offenses. At trial, the defendant moved to strike the evidence of the two offenses or, “in the alternative, requested that the court merge the two offenses into one violation.” In this appeal, the defendant, while not referring to Code § 19.2-294 in his brief, argued that the trial court impermissibly convicted him of reckless driving and eluding a police officer based on the same act.

Rule 5A:18, a codification of the contemporaneous objection rule, prohibits a ruling of a trial court from being the basis of a reversal unless an objection is stated “together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to obtain the ends of justice.” Rule 5A:18. The goal of this rule is “to avoid unnecessary appeals, reversals and mistrials by allowing the trial judge to intelligently consider an issue and, if necessary, to take corrective action.” Campbell v. Commonwealth, 12 Va.App. 476, 480, 405 S.E.2d 1, 2 (1991) (en banc). Judicial economy is the product of Rule 5A:18.

The contemporaneous objection rule requires only that a party inform the trial court of the action it wishes the court to take or its objection to the action of the court and the “grounds therefor.” Code § 8.01-384; see also Rule 5A:18; Campbell v. Commonwealth, 12 Va.App. at 480, 405 853*853 S.E.2d at 2. This rule does not prohibit reliance on statutes or cases not presented to the trial court to support, on appeal, a position otherwise adequately presented at trial. R. Martineau, Modern Appellate Practice § 3.8 (1983). Nor does it prevent this Court, on its own initiative, from relying on statutory or judicial authority that was not presented to the trial court or referred to in the briefs submitted by the parties. See id. at § 3.9.

At trial, the defendant requested the court to “merge the two offenses into one violation.” Merger, a common law principle, recognizes that certain offenses arising from the same occurrence may merge into a single offense. See Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 1181, 90 L.Ed. 1489 (1946). For example, “simple assault is ordinarily held to merge into the offense of assault with a dangerous weapon.” Whalen v. United States, 445 U.S. 684, 686, 100 S.Ct. 1432, 1435, 63 L.Ed.2d 715 (1979); Spickard v. City of Lynchburg, 174 Va. 502, 505, 6 S.E.2d 610, 611 (1940) (reckless driving does not merge with driving while intoxicated); Ramsey v. Commonwealth, 2 Va. App. 265, 272, 343 S.E.2d 465, 470 (1986) (Wharton’s Rule not a “merger” rule). Similarly, Code § 19.2-294 bars prosecution of one offense by virtue of a conviction of another offense based on the same act. Thus, Code § 19.2-294 performs a similar function statutorily that merger does at common law. Cf. Martin v. Commonwealth, 242 Va. 1, 8-9, 406 S.E.2d 15, 18-19 (Code § 19.2-294 does not apply to common law offenses), cert. denied,

U.S.
, 112 S.Ct. 388, 116 L.Ed.2d 339 (1991). Consequently, the contemporaneous objection rule does not prevent us from considering the application of Code § 19.2-294 in determining if the defendant’s conviction of reckless driving bars his conviction of eluding a police officer. Therefore, we will address the application of Code § 19.2-294 to this case.

If the “same act” is a violation of two or more statutes, conviction under one of the statutes is “a bar to a prosecution or proceeding under the other.” Code § 19.2-294.[2] This prohibition is dependent upon “the identity of the act.” Jones v. Commonwealth, 218 Va. 757, 760, 240 S.E.2d 658, 661 (1978) (larceny of an automobile in which to escape from robbery is not “same act” as robbery), cert. denied, 439 U.S. 892, 99 S.Ct. 249, 58 L.Ed.2d 238 (1978). If the statutory violations involve different acts, the prohibition is not applicable. Id. at 761, 240 S.E.2d at 661. The prohibition only “forbids multiple prosecution of offenses springing from the same criminal act.” Id. Thus, if two offenses involve “two separate and distinct acts” conviction of one does not bar a prosecution for the other. Id.; Fitzgerald v. Commonwealth, 11 Va.App. 625, 628, 401 S.E.2d 208, 210-11, aff’d. on reh’g en banc, 13 Va.App. 281, 411 S.E.2d 228 (1991).

Code § 19.2-294.1[3] and Code § 19.2-294 are different. Code § 19.2-294.1 provides that if a person is charged with driving while intoxicated and reckless driving, both “growing out of the same act or acts,” a conviction of one of the charges, requires dismissal of the remaining charge. This provision deals only with the offenses of driving while intoxicated and reckless driving; it applies to no other criminal offenses. Id. This statute is applicable where these two offenses grow “out of the same act or acts.” Id. “[T]he same act or 854*854 acts” means the act “of driving” and contemplates “a continuous, uninterrupted course of operation of a motor vehicle.” Padgett v. Commonwealth, 220 Va. 758, 761, 263 S.E.2d 388, 389-90 (1980) (per curiam).

Code § 19.2-294, on the other hand, applies to violation of any two or more statutes, not just driving while intoxicated and reckless driving. It is applicable only if “the same act” is a violation of two or more statutes, not to offenses “growing out of the same act or acts.” Code § 19.2-294. Furthermore, Code § 19.2-294 does not contemplate “a continuous, uninterrupted course of operation of a motor vehicle.” Code § 19.2-294; see also Fitzgerald, 11 Va.App. at 629, 401 S.E.2d at 211.

Code § 19.2-294.1, enacted after Code § 19.2-294, does not mimic Code § 19.2-294. It effects a different purpose. Code § 19.2-294.1 prohibits conviction of both driving while intoxicated and reckless driving growing out of the “same act or acts,” i.e., a “continuous, uninterrupted course” of operating a motor vehicle; Code § 19.2-294 prohibits the prosecution of a criminal offense after one has been convicted of another offense arising from the “same act.”

In this case, at least two separate and distinct acts supported the two different offenses with which the defendant was charged and convicted. The manner in which the defendant drove away from the police officer and the manner in which he drove through the red traffic signal and through the supermarket parking lot were acts upon which the charge of reckless driving could have been based. The defendant’s failure to stop in response to the police officer’s flashing light and siren after he drove away and before he reached the supermarket intersection was a separate and distinct act upon which the offense of eluding a police officer was based. Therefore, because two or more separate and distinct acts constituted two or more offenses, Code § 19.2-294 is not a bar to the prosecution of either offense. Having so concluded, we need not address whether Code § 19.2-294 applies to multiple convictions in a single trial.

The convictions are, therefore, affirmed. Affirmed.

KOONTZ, Chief Judge, with whom BENTON, Judge, joins, dissenting.

The “act” which led to Lash’s convictions of reckless driving and eluding a police officer was driving his vehicle on March 9, 1989 in one distinct, “continuous, uninterrupted course of [operating his] motor vehicle” bounded closely in terms of place and time. See Padgett v. Commonwealth, 220 Va. 758, 761, 263 S.E.2d 388, 389-90 (1980). The majority concludes, however, that Lash committed “at least two separate and distinct acts” which constituted two statutory offenses and, thus, that Code § 19.2-294 is not a bar to the convictions for both offenses. In my view, to reach this conclusion the majority has focused on the elements of the offenses charged against Lash rather than on the “act” or conduct of Lash. Because, on the facts of this particular case, this approach defeats the plain meaning and intent of Code § 19.2-294, I respectfully dissent.

In the original panel decision in this case, reported Lash v. County of Henrico, 13 Va.App. 251, 410 S.E.2d 689 (1991), I reviewed the legislative history of Code §§ 19.2-294 and 19.2-294.1 and the principal prior cases that have interpreted and applied these Code sections. I will not repeat that review here. However, because the majority compares and distinguishes these Code sections and, specifically, holds that “Code § 19.2-294 does not contemplate `a continuous, uninterrupted course of operation of a motor vehicle'” as the basis for its conclusion that this Code section is not applicable to this case, I will emphasize here a portion of my prior discussion. In doing so, I contend that the proper analysis of a Code § 19.2-294 claim requires that a court focus on the “act” or conduct of the accused as established by the facts, rather than on the elements of the offenses charged against the accused.

The General Assembly enacted the original version of Code § 19.2-294 in response 855*855 to the decision in Arrington v. Commonwealth, 87 Va. 96, 12 S.E. 224 (1890). There, the Supreme Court upheld the defendant’s conviction for the sale of ardent spirits without a license following her prior conviction for the sale of the identical ardent spirits on Sunday. The Court acknowledged that only one act—the sale of ardent spirits—was involved, but concluded that one act violated two separate statutes. After a subsequent amendment not pertinent to the present appeal, Code § 19.2-294 now provides, in pertinent part: “If the same act be a violation of two or more statutes, … conviction under one of such statutes … shall be a bar to a prosecution or proceeding under the other or others.”

Thereafter, in Hundley v. Commonwealth, 193 Va. 449, 69 S.E.2d 336 (1952), the Court held that the predecessor to Code § 19.2-294 was not a bar to convictions for driving while under the influence of intoxicants and reckless driving arising from one occurrence of driving. In Hundley, the defendant was driving while intoxicated and drove his vehicle at excessive speeds around curves and in such a manner as to endanger the police officer who was attempting to stop him. The Court found that this evidence disclosed two separate acts resulting in the commission of two separate offenses and, consequently, the statute was not applicable. Id. at 451, 69 S.E.2d at 337. In reaching this conclusion, the Court noted:

It is conceivable for a person under the influence of intoxicants to drive properly. Many people not under the influence of intoxicants drive recklessly. A test of the identity of acts or offenses is whether the same evidence is required to sustain them; if not, then the fact that several charges relate to and grow out of one transaction or occurrence does not make a single act or offense where two separate acts or offenses are defined by statute, as in the instant case.
Id. (emphasis added) (citations omitted).

Subsequent to the Hundley decision and apparently in response to it, the General Assembly enacted Code § 19.2-294.1, which provides, in pertinent part: “Whenever any person is charged with [driving under the influence of alcohol or drugs] and reckless driving growing out of the same act or acts and is convicted of one of these charges, the court shall dismiss the remaining charge.” To the extent the Hundley decision contains language which refers to “where two separate acts or offenses are defined by statute” there is a blurring of “acts” with “offenses” because “acts” are not defined by the statute. See 193 Va. at 451, 69 S.E.2d at 337 (emphasis added). Code § 19.2-294.1, however, resolves any questions left unclear by Hundley. This Code section recognizes that driving under the influence and reckless driving are separate offenses and expands its bar past that of Code § 19.2-294 to include “act or acts” rather than only the “same act.”

In Estes v. Commonwealth, 212 Va. 23, 181 S.E.2d 622 (1971), the Court held that the predecessor to Code § 19.2-294 was not a bar to convictions for driving under the influence and driving on a suspended license arising from the same occurrence of driving. The Court found that the defendant’s driving constituted separate acts that supported his convictions of separate offenses because he could be convicted of driving under the influence without evidence of the suspension of his license and vice versa. Id. at 24-25, 181 S.E.2d at 624. Implicit in the Court’s analysis is a focus on the elements of the offenses charged rather than the act or conduct of the accused.

Standing alone, Estes supports the elements of the offenses analysis adopted by the majority in the present case. However, in Padgett, decided subsequent to Estes, the Court held that the language, “same act or acts,” contained in Code § 19.2-294.1 means “the same act or acts of driving” and contemplates “a continuous, uninterrupted course of operation of a motor vehicle.” Padgett, 220 Va. at 761, 263 S.E.2d at 389-90. In that case, the defendant was charged with reckless driving in Lynchburg and driving while intoxicated in Bedford following a high speed chase by the police which began in the former jurisdiction and ended in the latter. The Court held that 856*856 the defendant’s conviction for the Lynchburg offense was a bar to his subsequent conviction for the Bedford offense. Significantly, the Court rejected the Commonwealth’s assertion that because the Lynchburg reckless driving charge required proof of venue different from the venue required to sustain the Bedford driving while intoxicated charge, the two charges did not grow out of the “same act.” Moreover, the Court acknowledged that under a constitutional double jeopardy claim, both convictions would stand because the Lynchburg charge could have been established without proof that the defendant was intoxicated and the Bedford charge could have been sustained without proof that the defendant drove recklessly. Cf. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); see also Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).

Hundley and Estes illustrate the particular difficulty in applying Code § 19.2-294 to cases in which the “act” involved is the operation of a motor vehicle. Obviously, the act of driving a motor vehicle inherently involves the movement of the vehicle in terms of time and space and affords the possibility of multiple offenses occurring in that process. Thus, in the present case, the majority is able, as with an imaginary stop watch and high speed camera, to isolate portions of Lash’s act of driving into separate acts such as “[1] the manner in which he drove away from the officer, and [2] the manner in which he drove through the red traffic signal and [3] through the supermarket” to support a reckless driving charge and also Lash’s “[4] failure to stop in response to the police officer’s flashing light and siren” during that process to support the offense of eluding a police officer. The majority has focused on particular parts of Lash’s continuous and uninterrupted act of driving and determined that these support separate offenses. Factually, however, Lash’s conduct is not divisible into distinct separate acts of driving. The majority then essentially applies the traditional double jeopardy claim test of whether one offense requires proof of a fact which another offense does not require. Under that test, Lash could be convicted of reckless driving without proof that he eluded a police officer and he could be convicted of eluding a police officer without proof that he drove recklessly. However, this is not the test applicable to a Code § 19.2-294 claim. Our Supreme Court in Jones v. Commonwealth, 218 Va. 757, 240 S.E.2d 658, cert. denied, 435 U.S. 909, 98 S.Ct. 1459, 55 L.Ed.2d 500 (1978), clearly distinguished the analysis applicable to constitutional double jeopardy claims from the analysis applicable to Code § 19.2-294 claims. There, both claims were asserted. The Court upheld the defendant’s convictions of robbery involving larceny of money and grand larceny of an automobile involving the same victim and arising from one incident at a motel. The Court stated: “[I]f the offenses are different and one is not lesser-included in the other, the constitutional guarantee [established in Blockburger] does not apply. If the acts are different, the statutory mandate [of Code § 19.2-294] does not apply.” Id. at 760-61, 240 S.E.2d at 661 (citations omitted). Accord Wade v. Commonwealth, 9 Va.App. 359, 365, 388 S.E.2d 277, 280 (1990) (holding that Code § 19.2-294 “speaks to `acts’ of the accused, not elements of the offense”).

The present appeal illustrates that the distinction between the constitutional claim analysis and the statutory claim analysis may be critical to the proper determination of a Code § 19.2-294 claim on the facts of a particular case. In my view, Jones and Padgett provide the guidance for the proper resolution of Lash’s statutory claim. Jones, decided after Estes, unequivocally requires an analysis of the act or conduct of the accused to determine the merits of a Code § 19.2-294 claim. Thus, Jones has, at least implicitly, overruled Estes, which used an element of the offense analysis in a Code § 19.2-294 claim. Padgett is consistent with Jones. Moreover, while Padgett involved a Code § 19.2-294.1 claim, I find no reason to distinguish its analysis of “the same act or acts” language of that Code section from the analysis of “the same act” language of Code § 19.2-294. Certainly nothing in the legislative history 857*857 or the language of either statute suggests a distinction. For these reasons, I disagree with the majority’s determination that “Code § 19.2-294 does not contemplate `a continuous, uninterrupted course of operation of a motor vehicle.'” When the act or conduct of Lash is viewed with the Jones and Padgett focus, it amounts to a single, continuous and unaltered act of dangerous driving in defiance of Officer Count’s command to park the car. Despite the fact that Officer Counts pursued Lash with his siren and blue lights in operation, Lash’s conduct remained continuous and unaltered. Though Lash’s conduct amounts to both reckless driving and eluding a police officer, his conduct giving rise to both offenses flowed from the “same act” and, therefore, can support only one conviction in accordance with Code § 19.2-294.

I do not suggest that Code § 19.2-294 affords a blanket bar to multiple convictions where one occurrence of driving a motor vehicle is involved. The determination of whether the conduct of an accused amounts to “the same act” as contemplated by Code § 19.2-294 is a factual determination and will rest upon the facts of a particular case. In my view, the facts of the present case suggest only one “act” of driving.

Although the majority does not reach the issue of whether Code § 19.2-294 applies to multiple convictions obtained in a single trial, in my view, that is the dispositive issue in Lash’s case. For the reasons that I have expressed in the panel opinion, Lash, 13 Va.App. at 259-61, 410 S.E.2d at 694-95, I would hold that this Code section applies to multiple convictions obtained in a single trial as well as to multiple convictions obtained in consecutive trials.

Accordingly, I would reverse the decision below and remand the case with directions that the trial court impose sentence in only one of the two convictions and dismiss the other.


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