Don't Invite the Officer to Add Evidence

I was recently waiting in court for a client’s reckless driving charge. I overheard another case that shocked me.

A driver was charged with reckless driving by speed. The officer testified to the basics of the case. He clocked the defendant going X speed, it happened in Spotsylvania County, etc.

Then the driver’s attorney cross-examined the officer. He asked if the officer had calibrated his radar.

That was the wrong move. The attorney essentially invited the officer to put forth additional evidence against his client. He missed the opportunity to beat the charge completely. Let me explain.

In a traffic or criminal case, the Commonwealth first puts forward their evidence against the defendant. At the conclusion of their evidence, they must have alleged all the elements of the offense. For a reckless driving by speed case, two of the elements are:

A. The officer’s tuning forks were calibrated within the previous six months.

B. The officer checked his radar unit for accuracy before and after the stop in question.

If the Commonwealth rests their case and they’ve left out an element, the defense should move to strike the case. That is asking the judge to dismiss the charge because the Commonwealth hasn’t even alleged a required part of the offense.

In the case I saw, I didn’t hear the officer testify about his tuning forks or radar testing at all. I could have missed it, but I don’t think I did.

In a case like that, the best response from the defense attorney after the officer finished testifying would be something like: “Your Honor, I move to strike, since there is no evidence regarding the tuning fork calibrations or that the radar had been checked for accuracy.”

Not all judges will dismiss a case at that point, but they should. It’s the law.

I don’t mean this post to be critical of a colleague. I’ve certainly made plenty of my own mistakes; nobody will ever be perfect. And the case in question did end up being referred to driving school.

My point is that hiring an experienced traffic lawyer can be a huge advantage in your case. Be sure to hire someone who regularly handles traffic cases in the court where your charge is pending.

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Andrew Flusche

My name is Andrew Flusche. I am a traffic and misdemeanor defense lawyer in Virginia. I limit my practice to traffic tickets and misdemeanor defense, so I know the ins and outs of these offenses. I literally wrote the book on reckless driving in Virginia which you can get on Amazon here or download for free here. I opened my practice in 2008 after earning my Juris Doctor degree from the University of Virginia School of Law. Since then, I have earned over 600 5-star reviews from happy clients on Google, Yelp, and Facebook. If you’ve been charged with a misdemeanor offense in Virginia, please don’t hesitate to contact me. Your initial consultation is always free, and you'll talk directly with me about the details of your case.

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