Reckless Driving Already Covers Texting – Expanded Definition not Necessary

Delegate Cline’s proposed bill to specifically say classify using a mobile communication device while driving as reckless driving is unnecessary. Not only is it overbroad like I’ve discussed before, but this bill is completely unnecessary because if you’re texting it can already be considered reckless driving.

The bill seems to stem from a case back in September where the defense argued that the driver couldn’t be found guilty of reckless driving in an accident where he struck and killed a pedestrian. The argument by Commonwealth was that the driver had allegedly opened a text message right before the accident. That was the only evidence that he did anything wrong to cause the accident. The defense argued that the Virginia legislature made texting a small traffic infraction, so just texting is not enough to be reckless driving. The judge apparently agreed in some form and found the defendant not guilty of reckless driving.

First of all, that’s only one judge’s interpretation. Maybe other judges are reading it the same way, but that’s only one judge’s interpretation at this point as far as I know. Therefore, we shouldn’t be changing the law just based on one specific case. That’s simply one trial judge’s ruling that made the papers.

The other problem is it’s very clear that if you’re texting and actually causing hazards that would be reckless driving. Reckless driving general, under 46.2-852, says that any person is guilty of reckless driving if they drive in a manner that endangers the life, limb, or property of anyone. Therefore, if you’re driving along and using your for anything whether it’s a verbal conversation, text messaging, playing games whatever, you can be found guilty of reckless driving if you’re endangering people or property.

Simply opening a text message may not have met that burden to prove that the driver was endangering somebody else’s life, limb, or property. It seems incongruent, since the pedestrian was killed. How could he not have been endangering somebody else’s life?

The law requires that the Commonwealth prove the defendant is guilty beyond a reasonable doubt. Many Virginia cases have been decided for years and years interpreting what reckless driving is and what the Commonwealth’s burden is in proving these cases. The classic example is the Powers case where the vehicle went off the road some 900 feet. The engine flew out of the vehicle. The vehicle debarked two different trees that were a little ways apart. It was just a horrific awful accident. However, the court said that there simply hadn’t been proof that the driver did anything wrong; therefore, they could not be found guilty of reckless driving. The judge has to look at the actual act or lack of action and has to have some kind of reckless behavior by the defendant. He either had to do something that was reckless or not do something that created a reckless situation. We can’t look at the end result of someone being killed and say that the driver must have been reckless.

In the case that was in the news, it may simply not have been a strong enough case to prove that the defendant was in fact reckless; however, there are plenty of cases where you can imagine that the defendant could be proven to be reckless for using his while driving. For example, many people admit that they were texting when the officer asks them. If you admitted that you were texting, you killed someone, and a witness testified that they saw you swerve over the lane a few times, I think most judges would find that you were guilty of reckless driving. Especially if there were records of several texts being sent and received over a longer period of time. I think it would be pretty easy for a judge to find you guilty of reckless driving in a case like that.

We don’t need an overbroad expansion of the law. The existing reckless driving law is enough for the serious cases where the evidence is solid.

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.

What's Next?

Get Free Answers

Andrew wrote the book on reckless driving. It’s the most-reviewed Virginia reckless driving resource on

Get Your Free Copy

Andrew wrote the book on DWI. It’s jam-packed full of answers for your case.

Get Your Free Copy

Our special report about driving on suspended explains six critical issues to possibly fight in your case.

Get Your Free Copy


We provide free consultations for cases in our area. If we can't help, we'll do our best to connect you with someone who can.


Contact Andrew & Fitz