Stopping on Highways: Va Code 46.2-888

Posted on October 2, 2012 by Luke Nichols

Stopping on Highways: Va Code 46.2-888

In Virginia, stopping on a highway in a way that impedes traffic or is dangerous is illegal unless there is an emergency, an accident or a mechanical breakdown. If there is an emergency, accident or breakdown the driver must activate their hazard lights if the light are working.

Violating this law is a traffic ticket, though sometimes it is charged as a general reckless driving or aggressive drivng in more serious cases.

46.2-888 (Stopping on a Highway) is a 3 point offense in Virginia.  Stopping on a Highway is pre-payable at $71 but may result in up to $312 of fines and court costs.

This offense can be hard to prove because an officer must prove that there was no emergency, accident or mechanical breakdown or that the hazard lights are working properly. Often this ticket is written after a stopped vehicle causes an accident. In that situation it is hard for the officer to arrive after-the-fact and to prove why the vehicle stopped and whether its hazard lights were working at the time.

 If you receive a ticket for Stopping on a highway (Va code 46.2-888) you should consult an attorney IF:

  • The ticket involved an accident (prepaying the ticket may expose you to a law suit)
  • You have excessive demerit points
  • You are on any type of probation or control period.

 

Luke J. Nichols

The law firm of Nichols & Green pllc

www.nicholsgreen.com

(703) 383-9222

lnichols@nicholsgreen.com

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Virginia Traffic Tickets: HOV Violations (Va. Code 33.1-46.2)

Posted on October 1, 2012 by Luke Nichols

Virginia Traffic Tickets: HOV Violations (Va. Code 33.1-46.2)

Traffic Court judges have little or no discretion in determining the punishment for an HOV violation. Many courts will not offer traffic school in exchange for dismissal for HOV violations. Additionally, the law states the exact fine to be given NOT a range of fines as with most traffic tickets. If you are found guilty the punishment for an HOV ticket is the same for everyone regardless of their record or sympathetic factors.

HOV Violations in Planning District 8

The punishment for a Virginia HOV ticket is different depending on where you are in Virginia. The following are the punishments for HOV tickets in the commonwealth transportation planning board planning district 8 (Arlington, Fairfax, Loudoun and Prince William; the cities of Alexandria, Fairfax, Falls Church, Manassas and Manassas Park; the towns of Dumfries, Herndon, Leesburg, Purcellville and Vienna).

First offense:  $125 fine and 0 demerit points;

  • Second offense in five years from a first offense: $250 fine and 3 demerit points;
  • Third offense in five year from a first offense: $500 fine and 3 demerit points
  • Fourth or subsequent offense within five years from a first offense: $1,000 fine and 3 demerit points.

HOV Violations Outside Planning District 8

For HOV tickets outside planning district 8 are punished differently. Any person who commits an HOV violation outside of planning district 8 (Arlington, Fairfax, Loudoun and Prince William; the cities of Alexandria, Fairfax, Falls Church, Manassas and Manassas Park; the towns of Dumfries, Herndon, Leesburg, Purcellville and Vienna) shall be guilty of a 0 demerit point traffic infraction which shall not be a moving violation and the fine is $100.

HOV Ticket Defenses

Here are some basic defenses to an HOV violation:

  • The HOV signs was not plainly posted

Most HOV lanes in Virginia are properly posted however, road construction,         vegetation, wear-and-tear, snow and ice or damage may have created a situation        where the sign was no longer “properly posted”.

  • The HOV signs did not state the time and days of the week when the HOV lanes are restricted

An HOV sign must state the time and days that the HOV lanes are restricted. If    that information is not present on the sign or if it has become illegible or obscured        then the sign no longer functions as a properly posted HOV sign as required by      the law.

  • The Driver was not in the HOV lane during the restricted times

Check your Virginia Uniform Summons to see what time the officer wrote for the “Time of Offense” portion of your summons. If that time is not during the restricted time you may have a good defense. If the officer wrote the wrong time make sure you are prepared to tell the judge which clock you were relying on to determine the time and how you know that clock is accurate. I recommend checking the clock against the US Naval Observatory’

  • The Vehicle was an exempt vehicle or driver

The following is a list of exempt vehicles and driver’s:

1. Emergency vehicles

2. Law-enforcement vehicles,

3. Motorcycles,

4. a. Transit and commuter buses designed to transport 16 or more passengers, including the driver,

b. Certain charter buses and certain common carriers

5. Vehicles of public utility companies operating in response to an emergency call,

6. Vehicles bearing clean special fuel vehicle license plates.

(On the I-95/395 HOV lanes the special license plate must predate July 1 2006)

(On I-66 HOV lanes the special license plate must predate July 1 2011)

7. Taxicabs having two or more occupants, including the driver

  • The Vehicle contained the required number of passengers

            (Children count – pets don’t)

  • The offense occurred outside the jurisdiction of the Court or the Officer

If the HOV violation occurred outside the officer’s jurisdiction or the court’s jurisdiction, that officer or that the court does not have the authority to punish you.

  • The offense did not occur within the presence of the ticketing officer

If the officer did not personally witness you commit the HOV violation, that officer cannot write you a ticket for an HOV violation. Instead the officer would have to get a warrant and serve the ticket on you. The most common way this happens is when the officer is waiting at the exit of an HOV lane and tickets people exiting the lane one minute after the lane opens to all traffic. The officer knows you must have been driving in the HOV lane during the restrictions but did not witness the violation.

  • The Owner of the car was not the Driver (For photo or mail HOV tickets)

Some jurisdictions have the ability to prosecute HOV violations by sending the ticket in the mail to the owner of the car. If you get a ticket in the mail for an HOV violation and you were not the driver, you must present evidence that you were not the driver to avoid conviction. You can do this by taking the stand and testifying that you were not the driver.

 

Luke J. Nichols

The law firm of Nichols & Green pllc

www.nicholsgreen.com

(703) 383-9222

lnichols@nicholsgreen.com

 

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I Want to Appeal My Traffic Ticket: How to fix your traffic ticket when things go wrong.

Posted on September 27, 2012 by Luke Nichols

An Appeal to the Circuit Court.

In Virginia anyone can appeal the decision of the General District Court or the Juvenile and Domestic Relations Court within 10 days of their traffic ticket being finalized (10 days from the day of your trial usually). If you are within the 10 days you can go to the clerk of the GDC or JDR Court and file an appeal to the Circuit court.

If you missed your appeal date there are a few less favorable options.

Motions to Reconsider

You can ask for a motion to reconsider up to 60 days after the trial (but only if you have not appealed). Motions to reconsider are typically heard by the same judge that ruled in your original case.

Unlike appeals which are automatic, a motion to reconsider is usually rejected. In order to even consider reevaluating your case the judges want to hear a really good excuse. A good excuse can be a lot of things but typically it is new information about your case that was not available during your first trial. For example, if after your trial, you find a witness that exonerates you and who was not available for the original trial that may be a good enough excuse.

If the judge grants your motion to consider the judge will then decide whether or not to change their decision. If you are asking only to change the punishment the judge may make their decision immediately after granting the motion to reconsider. If you are pleading not guilty or if the judge wants to hear evidence then the judge will usually set a new hearing date.

Motion to Amend the Conviction Date

If you want to appeal but you missed the 10 day deadline you can ask for a motion to amend the conviction date. The judge basically changes the day you were convicted to get around the 10 day rule. This motion is a good fit when you just barely missed the 10 day window and you have a good excuse for not appealing the case on time (for example, you were hit by a car on your way to the court clerk’s office).

Motion to Reopen the Case

A motion to reopen the case is very similar to a Motion to Reconsider. However, a motion to reopen the case is usually when the case was messed up procedurally. For instance, if you missed your court date because the officer wrote the wrong date on your summons or because the clerk sent you to the wrong court room then you would use a motion to reopen to fix it.

Motion to Correct a Scrivener’s Error.

If the clerk’s officer or a judge wrote down the wrong sentence or the wrong punishment on your paperwork and you need to correct a clerical error in the court records the first thing you can do is go to the clerks officer. Sometimes the clerks can correct the error without needing a motion. If after talking to the clerk’s you need to file a motion, then you file a motion to correct a scrivener’s  error. (FYI- a scrivener is someone who transcribes or prepares a document). If the judge is convinced that your sentence or punishment was incorrectly recorded then the judge can amend it.

Whether you are appealing a decision or filing a motion, a competent traffic attorney is invaluable. Before you ever decide to go to court by yourself, always take a moment to get a free consultation from a local traffic attorney first.

 Luke J. Nichols

The law firm of Nichols & Green pllc

www.nicholsgreen.com

(703) 383-9222

lnichols@nicholsgreen.com

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D.C. License Suspensions for Virginia reckless Driving Convictions

Posted on September 25, 2012 by Luke Nichols

This summer the DC DMV commissioner announced that they will suspend DC driver’s licenses for conviction for reckless driving that occur in Virginia. In Mid September the DC. Attorney General weighed in and the D.C. counsel approved an emergency order that would prevent this from happening.

At this point it is unclear whether the counsel’s actions will take affect of not and whether the bill will be signed by the mayor.

This episode in D.C. emphasizes two fact about traffic law and license suspensions: 1) only your home state can suspend your license. A foreign state can ban you from driving in their state, but your home state is the only one who can take away your license.

And 2), your home state can choose to revoke, suspend, or restrict your license because of traffic offenses that occurred in other jurisdictions.

And 3), How a state chooses to curtail your driving privileges changes constantly and depends on which state issued your license, where you got your ticket, and what you were convicted of. They only way to know for sure, how a state will react to a foreign ticket is to contact an attorney who practices in your home state.

Luke J. Nichols

Nichols & Green pllc

www.nicholsgreen.com
(703) 383-9222

 

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