Letter to Board of Supervisors – Distracted Driving/Full Time and Attention Traffic Ordinance

Dear Supervisors,

I am concerned about the proposed “distracted driving” / “full time and attention” traffic ordinance set for a September 13 public hearing.

In sum, I recommend voting NO on the proposed ordinance. If the Board wishes to pass an ordinance similar to this, I urge you at a minimum to change the ordinance to require an actual vehicle collision in order to be guilty.

I defend traffic tickets in Spotsylvania and the greater Fredericksburg area. I defend Spotsylvania residents in these accidents, and I work alongside Spotsylvania Sheriff’s Deputies and the Virginia State Police in resolving these cases.

I certainly do not want drivers forced into court for minor accidents. As a Spotsylvania resident and traffic defense lawyer, I want what is truly best for our County and motorists who drive on our roadways. I applaud the idea of saving time and money; however, the proposed ordinance presents many issues:

1. The ordinance is vague. With any traffic or criminal law, we should ask, “How far can this be stretched?” The Commonwealth’s Attorney is cited in the newspaper as saying that the ordinance could apply to people who are not involved in accidents, but he says that is not the point of the ordinance. Thus, we have a proposed law that is too broad for its intended purpose. It could apply in unforeseen ways, such as a driver adjusting their A/C without endangering anyone.
On the opposite end of the spectrum, the ordinance does not actually apply in many minor traffic accidents. Deputies typically write a reckless driving ticket when a vehicle slips off the edge of a narrow county road and ends up in the ditch without hitting anyone. It’s a minor accident by any account. But unless there is evidence that the defendant was distracted or looked away, the ordinance would not apply.

At a minimum, the ordinance could be tightened up by requiring an actual vehicle collision for the law to apply.

2. Have any members of the local defense bar been consulted about the ordinance? The ordinance comes at the request of the Commonwealth’s Attorney and Sheriff. There are two sides to every issue, especially when discussing crimes and traffic offenses. The Board should have a dialogue with the defense bar to make sure all sides of this issue are considered.

3. The Agenda Summary shows a bias against defendants. Defendants are innocent until proven guilty. Defendants should be referred to as “defendants” or “the accused.” However, the Agenda Summary refers to innocent people as “Offenders.” It presumes that people have in fact committed an offense. Nobody is an “offender” unless they are found guilty of an offense.

4. Sometimes nobody is guilty. The Virginia Supreme Court is clear that traffic accidents do happen, and it doesn’t always mean that someone is guilty of an offense. If a deputy writes a reckless driving ticket, and the defendant appears in court, the judge may end up hearing the evidence and finding the defendant not guilty. If deputies write a minor ticket and encourage pre-payment, the defendant might simply plead guilty to avoid the inconvenience of court, even if they are not guilty.

As I sat in court editing this, TWO separate defendants appeared for single vehicle reckless driving accidents from a Virginia State Trooper. They pleaded not guilty without a lawyer. The judge heard the evidence (which consisted of the drivers swerving to miss an animal, then going off the road). The judge found both defendants NOT guilty. If they had been given a pre-payable ticket, they might have pleaded guilty to avoid coming to court, even though they did nothing wrong.

5. Pre-paying could hurt defendants civilly. If a driver has a minor accident and gets a “distracted driving” ticket that they are encouraged to pre-pay, that guilty plea can be used against them if another party later files a civil lawsuit. Some defendants might choose the easy, no points on license option of prepaying without thinking about the bigger ramifications at issue.

6. The ordinance will likely NOT save the County money. Deputies have regular dates where they have to appear in court for their tickets. Most of the deputies who respond to traffic accidents have MANY cases on each of their dockets. Converting a traffic accident or two to a pre-payable offense would NOT normally keep these officers from having to come to court. They will usually be at court for other matters ranging from speeding tickets to DWIs to serious felonies.

7. Fines already go to the County when deputies write tickets. The Agenda Financial Impact notes that “Due to this offense being a County Ordinance, the fines collected are kept by the County.” That’s already the case. When deputies write a ticket for a state law violation, they precede the code section on the ticket with “12-2”, which refers to the County Code section that incorporates the state motor vehicle laws into the County Code. Thus, when a deputy writes a speeding ticket or reckless driving ticket, any resulting fines already go to the County.

But what percentage of traffic accidents does the Sheriff’s Office respond to, compared to the State Police? Since the proposed ordinance is a County Code violation, it would not apply to State Police accident investigations; the State Police cannot write tickets for County Code violations. The State Police actually handle many of the accident investigations within the County, and fine money from their tickets goes the Virginia Literary Fund.

8. The ordinance might add MORE to the court docket. When a defendant receives a pre-payable ticket that does not require a court appearance (such as “following too closely”), the Spotsylvania General District Court does not subpoena witnesses for the first calling of the case. The deputy shows up on his scheduled court date. The case gets called (if it has not been prepaid). If the defendant appears and wants a trial, the judge continues the case to the deputy’s next scheduled court date. The witnesses are subpoenaed for that new date. Everyone shows up on the second date, and the trial is held. There is a paperwork process where the defendant can request trial in advance; however, many pro se defendants do not seem to understand and follow this process. Contrast this with many reckless driving cases (where the defendant is supposed to appear): the witnesses are usually subpoenaed for the first calling of the case, where the case can typically be disposed of with everyone present on the first court date.

If the Board is not ready to reject this ordinance outright, you could table it for further inquiry and discussion. I recommend having County Staff check into some of the facts involved:

1. How many traffic accidents did the Sheriff’s Office respond to each year for the past 2-3 years?

2. How many of those investigations resulted in reckless driving tickets?

3. What were the outcomes for those tickets? (ex: guilty of reckless driving, guilty of improper driving, not guilty, etc)

4. How do these numbers compare to the Virginia State Police within Spotsylvania County for the past 2-3 years?

5. What other laws are already in place that might cover the accidents in question, such as following too closely, improper lane change, etc?

This information could help illuminate the issue for the Board and could show whether or not the ordinance would actually alleviate court dockets and county expenses.

Thank you for taking the time to read these comments. I am available to speak with any of you about this ordinance – or any traffic / criminal issues in the County. Please feel free to contact me any time.

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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