Expunging DUI charges edited to a less serious count- Two of three authoring Fairfax judges make DUI charges hard to expunge when amended to reckless generally

Expunging DUI charges that get reduced to a conviction for something less serious sounding, is a real challenge in Fairfax when the amended reckless count is reckless driving generally, which statute provides: “Irrespective of the maximum speeds permitted by law, any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving.” Va. Code § 46.2-852. Thus far, as a Fairfax criminal lawyer, I count two Fairfax County, Virginia, Circuit Court judges who have publicly announced their being not likely to grant expungement of a DWI charge that gets amended to reckless driving generally. W.H.D. v. Commonwealth of Virginia, 111 Va. Cir. 553, Case No. CL-2022-9997 (Fairfax 2023) (Judge Oblon); S.L. v. Commonwealth, Case No. 2023-10769 (Fairfax 2024) (Judge Frieden) (as referenced by K.P. v. Commonwealth, 113 Va. Cir. 391 (Fairfax 2024).

Fairfax Circuit Court opinion letters are not binding on other judges, but may be persuasive authority

Fairfax Circuit Court opinion letters are not binding on other judges for expunging petitions or anything else, but may be persuasive authority. First, some such opinion letters are very detailed, in depth and total several pages. Under such circumstances, a Virginia Circuit Court judge avoids taking time to make the potential appellate record by simply adopting the conclusion — if not also the reasoning — of the Virginia Circuit Court judge issuing such a written opinion. Second, judges will consider who is the author of such opinions and how much the judge agrees with the opinion letter.

Expunging DUI that gets amended to a Fairfax general reckless driving convictions calls from supporting the reason of J.A.S. v. Commonwealth of Virginia

Countering the W.H.D. and S.L. expunging cases is J.A.S. v. Commonwealth of Virginia, 112 Va. Cir. 224 (2023): “The Court has considered the question of whether the amended charge of reckless driving [generally under Va. Code § 46.2-852] of which Petitioner was convicted, is conceptually dissimilar to the original offense of DUI, so that the original charge may be deemed ‘otherwise dismissed” and expunged. This Court finds the charges in the instant case are conceptually dissimilar because the seven reasonably derived comparative factors below summarized inform the offenses are aimed at addressing fundamentally different conceptual considerations. DUI and reckless driving are conceptually dissimilar in that they spring from distinct originating factors, reflect unalike volitional intention, differ in locational scope, proscribe different behaviors, are of diverse criminal categories, occasion divergent minimum consequences, and stir varying societal perspectives.” J.A.S. 

Why is should expunging DUI amended to improper driving be successful when doing the same with an amendment to reckless generally would be declined under the reasoning of Fairfax judges Oblon and Frieden?

Fairfax Judge Frieden answers the foregoing questions in K.P. v. Commonwealth of Virginia: “The Code enumerates fifteen separate offenses that constitute “reckless driving,” each with its own elements. Improper driving can result from any of those fifteen separate offenses, provided that: (1) upon trial, the court finds that the degree of culpability is “slight” and, therefore, finds the accused not guilty of reckless driving but guilty of improper driving; or (2) the Commonwealth’s attorney reduces the charge of reckless driving to improper driving.” Consequently, for purposes of success with expunging petitions, consider asking your Fairfax criminal lawyer what can be done for any amendment of DUI to reckless driving to be for a reckless driving Code section that is not reckless driving generally.

Fairfax criminal lawyer Jonathan Katz does not let go of a skillfully spirited fight for your best possible defense. For your free in-person confidential consultation about your court-pending case, call 703-383-1100, Info@KatzJustice.com and (text) 571-406-7268.