Burnett & Williams

3 Common Traffic Law Myths

3 Common Traffic Law Myths

looking out from the drivers view

1. “I want an attorney to get this charge off my record.”

In my former life focusing primarily on criminal and traffic defense, it seemed that around 50% of my intake phone calls began with some variation of the following: “The reason I’m calling a lawyer is that I just want this charge off my record.”  That would, of course, be a convenient result for pretty much everyone faced with a traffic charge.  The reality, however, is that just because you hire a lawyer to “defend” your case, that doesn’t mean it will simply go away.  Many people charged with traffic offenses – whatever the nature, whether it’s speeding, running a red light, or DUI – have no legitimate legal defenses.  In other words, they are caught red-handed, but assume that their lawyer has the power to make the charge disappear. While every competent attorney should investigate the case to determine whether there are any defenses available, if there are none to be found, then mitigation of the offense is usually the best outcome an attorney can achieve for their client.  For example, someone caught doing 70 mph in a 55 mph zone is simply speeding, and in Virginia that speed is a 4 point traffic infraction.  Depending on the jurisdiction (and the prosecutor), if that person has good driving record, and perhaps has taken a step towards presenting themselves in a favorable light – e.g. on advice of their lawyer, taken a driver improvement course or obtained a speedometer calibration – then it may be entirely possible for the defense attorney to negotiate a reduction of the charge, perhaps even into the “non-moving” (zero-points-off-your-record) category such as Defective Speedometer (VA Code § 46.2-1080).  That would, in essence, mean that the original charge of speeding 70/55 is now “off their record,” and the attorney has saved them 4 points.  Therefore, as you can see, while there may be ways for a defense attorney to “get the charge off the record,” no attorney could guarantee such a result, and it is often a little more complicated and dependent on the facts and circumstances than the client imagined when they first picked up the phone to call a lawyer.  But unfortunately, defense attorneys do not have magic wands to make charges disappear.

2. “If the officer doesn’t show up, my case will be dismissed, right

A corollary myth to that of the attorney’s ability to make a charge disappear is that the judge will dismiss the charge if the officer does not appear in court.  That seems to make logical sense.  How could the Commonwealth possibly prove its case if the chief witness, the charging officer, isn’t present in court to testify about the traffic stop?  The real question, however, is why the officer isn’t present in court.  Sometimes, it’s because the officer had to pick up a sick child at school, or maybe they got called to the scene of an accident.  Maybe they even had pre-scheduled leave, and for whatever reason, didn’t inform the clerk and prosecutor handling the docket that day.  In many smaller jurisdictions, where judges, prosecutors, and officers see each other in court on a regular basis, as long as a plausibly valid reason exists, the judge will often continue the case to the officer’s next available court date without seeking any input from the driver charged with the offense, or their attorney (if they’ve hired one), despite the fact that they may be present in court and ready to have a trial on the case.

Yes, in some larger jurisdictions, where a particular traffic docket may have as many as 15-20 officers with cases, if the judge calls the case and the officer doesn’t answer, the judge may simply dismiss the case without inquiring as to the reason for the officer’s absence, end of story.  However, it is a faulty assumption that the officer’s absence from court automatically results in case dismissal.

3. “The officer said he would reduce the charge at court.”

In a majority of traffic stops, drivers have civil, pleasant encounters with officers.  Of course, this notion is relative given that they’ve been pulled over for a traffic violation.  Fairly frequently, when a relatively pleasant and mutually respectful encounter has taken place, the driver will report to the attorney as follows: “The officer told me they’d reduce the charge in court.”  Sometimes officers are under the mistaken impression that they have the power to reduce charges in court, but more often than not, to soften the blow of the traffic stop, the officer will have told the driver that they will “recommend” that the charge be reduced.  By themselves, officers have no power to “reduce” charges in court.[1]  However, in most jurisdictions the officer will speak in advance to the prosecutor, and may at that time tell the prosecutor they have no problem with reducing the charge.  The decision will ultimately be up to the prosecutor, who may ultimately decide to reduce the charge in negotiating the case with a defense attorney.  Alternatively, consider the case of an unrepresented party who appears in court and pleads guilty (hoping for the best). The judge may, at their discretion, and often after hearing a brief synopsis of the traffic stop provided by the officer and inquiring as the to the defendant’s driving record, ask the officer if they have a problem with reducing the charge, at which time the officer may tell the judge that they are fine with a reduction.  But again, the decision is ultimately out of the officer’s control.  While an officer saying that they will “reduce the charge at court” usually results in providing a false belief in the driver that a reduction is within the power of the officer, it is more often the officer’s way of saying that they will put in a good word, if asked by the prosecutor or judge.  While that good word may be heeded by judge or prosecutor, sometimes it is not.  The moral is that a driver charged with a traffic offense should never take the officer’s word that “the charge will be reduced at a court.”

Keep in mind that these three myths are generalities about traffic law.  Jurisdictions vary significantly over practice and procedure.  For example, in some jurisdictions the prosecutor may never be involved in minor traffic offenses like speeding, and it will be up to the judge alone, after hearing from the driver and the officer, to decide what happens with the case.  In others, prosecutors will only speak with represented parties.  In some small jurisdictions, unrepresented parties who appear in court to contest their case may be afforded the opportunity to attempt negotiation with the prosecutor prior to trial.  Regardless of the nature of the offense, if you want to have a sense for your options and potential outcomes, it is always best to consult a local attorney who practices traffic law regularly in the specific jurisdiction in which you are


[1] This situation plays out most frequently in an accident case where it is standard operating procedure for many officers to charge the at-fault driver with Reckless Driving, in violation Virginia Code § 46.2-852, regardless of the degree of negligence, or the severity of damage and personal injury.  Many officers in cases with slight negligence – e.g. driver spilled some coffee and had a minor rear-end accident – will tell the at-fault driver, as they are handing them a summons for Reckless Driving, that they will “reduce the charge in court.”  Virginia Code § 46.2-869, the Improper Driving statute, states as follows: Notwithstanding the foregoing provisions of this article, upon the trial of any person charged with reckless driving where the degree of culpability is slight, the court in its discretion may find the accused not guilty of reckless driving but guilty of improper driving. However, an attorney for the Commonwealth may reduce a charge of reckless driving to improper driving at any time prior to the court’s decision and shall notify the court of such change. Improper driving shall be punishable as a traffic infraction punishable by a fine of not more than $500.  While many officers, if asked, will tell the judge and/or prosecutor that they feel a particular accident is more properly “Improper Driving” – i.e. recommending reduction from the 6-point criminal misdemeanor Reckless Driving to the 3-point traffic infraction of Improper Driving – you will notice that the statute does mention anywhere that an officer has the inherent ability to reduce the charge voluntarily.