In order for the government to convict you of Reckless Driving by Speed the Commonwealth has to prove beyond a reasonable doubt that you were speeding at either (i) 20 mph or more in excess of the speed limit or (ii) in excess of 85 mph regardless of the speed limit.

So how would Attorney Matthew Barbero defend against that? Well, one way to win is if the officer simply forgets to mention the speed altogether. You might think that is crazy but it does happen from time to time. I had a case where the officer simply said my client was “going at a high rate of speed” but never actually said a specific number, I moved to strike on that error and the Court dismissed the case on my motion. Another way to attack this is by getting a calibration of your vehicle’s speedometer and giving that to your lawyer to present to the judge.

Virginia Code section § 46.2-942 states:

“In the trial of any person charged with exceeding any maximum speed limit in the Commonwealth, the court shall receive as evidence a sworn report of the results of a calibration test of the accuracy of the speedometer in the motor vehicle operated by the defendant or the arresting officer at the time of the alleged offense. The report shall be considered by the court or jury in both determining guilt or innocence and in fixing punishment.”

 As you can see your lawyer would then be able to introduce as evidence the result of your vehicle’s speedometer calibration and as you see in the above code section it says that the court SHALL consider it for both guilt and innocence as well as for fixing punishment. Generally speaking, if the calibration is off in your favor the court will credit you the difference. Note: the key is that it needs to be off in your favor, not off against you. For example, if your speedometer was showing 80 mph, but your actual speed is 82 mph then that would be 2 miles off in your favor and the court would generally credit you those two miles. Conversely, if your speedometer was showing 82 mph, but your actual speed is 80 mph then that would be against you. Your lawyer will be able to determine whether your vehicle’s speedometer calibration is or is not in your favor.

Here are two examples of how entering a favorable calibration can be relevant in successfully attacking the speed:

Example #1 

The person is charged with going 87 mph in a 70 mph zone. Here, that is reckless driving under (ii) since it is in excess of 85 mph regardless of the speed limit. If the person has a calibration that is 2 mph off in their favor, and the court were to credit those two miles, then that would then bring the speed down to 85 mph in a 70 mph zone which would mean the person is NOT guilty of reckless driving as a matter of law. We know that because it meets neither of the two prongs now, it is not 20 mph over the speed limit nor is it in excess of 85mph since it is merely 85 mph on the nose. 

Example #2 

The person is charged with going 81 mph in a 60 mph zone. Here, that is reckless driving under (i) since it’s 20mph or more over the speed limit. If the person has a calibration that is 2 mph off in their favor, and the court were to credit those two miles, then that would bring the speed down to 79 mph in a 60 mph zone which would mean that the person is NOT guilty of reckless driving as a matter of law. We know that because it meets NEITHER of the two prongs now, it is no longer 20 mph or more over the speed limit as it is now only 19 mph over and it was never was in excess of 85 mph to begin with.