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Virginia judges may indeed self-amend DWI charges to reckless driving

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On January 10, 2013, Virginia’s Supreme Court allowed trial judges to amend drunk driving/DWI charges to reckless driving, at least where the judge has not yet found guilt of DWI and where the defendant does not oppose the amendment. Kelley v. Stamos, ___ Va. ___ (Jan. 10, 2013).

Reckless driving is a double-edged sword in Virginia. On the downside, a reckless driving conviction can arise not only from driving recklessly but from driving twenty miles an hour or more over the speed limit or eighty miles an hour or more, and is a Class 1 misdemeanor carrying up to a year in jail, up to a $2500 fine, and up to six months of suspended driving (with restricted driving privileges available). On the upside, for less serious DWI charges (e.g., with a low blood alcohol reading) or where the prosecutor is unsure whether s/he will win the DWI charge, Virginia prosecutors sometimes offer to amend DWI to a guilty plea or reckless driving, which looks better on one’s record than DWI and eliminates the mandatory ignition interlock. Over time, some judges have been more willing than others, even, to amend DWI to reckless — even without prosecutors concurring, as I obtained at the end of a DWI trial as explained here and without my request — where the judge finds such an amendment to be merited, even though reckless driving is not a lesser included crime of DWI.

Last Thursday, Virginia’s Supreme Court authorized trial judges to continue with the practice, if the judges so choose, to amend a DWI charge to reckless driving if they so choose, without kneeing the prosecutor’s consent. In Kelley, the defendant entered a guilty plea before the General District Court judge, who continued the case disposition to the following month. The General District Court being a court not of record, with no recording device in the courtroom unless one or both parties arrange for it, the Supreme Court was not sure what precisely took place in the District Court, so relied on the documents in the case and the notations made on the case disposition sheet.

The prosecutor successfully sought an order from the next highest court, the Circuit Court, for the General District Court judge to change his disposition to DWI. Praised be Virginia’s Supreme Court for reversing the Circuit Court, saying that trial judges are authorized on their own, without the prosecutor’s consent, to amend criminal charges. Implicit in the ruling is that the defendant needs to consent to the amendment, and what defendant would not consent to amending DWI to reckless driving, everything else held equal?

ADDENDUM: As procedural curiosity, the foregoing Kelley case arose from the chief county prosecutor Theo Stamos’s filing a lawsuit against the presiding General District Court Judge Thomas Kelley (before whom I have appeared many times) seeking a mandamus order from the Circuit Court. Kelley also addresses Judge Kelley’s procedural challenges to the prosecutor’s seeking mandamus relief. I am curious about whether the General District Court system paid the fee to have Judge Kelley represented by counsel in this case, who on appeal was Robert R. Musick of Richmond.