Hello,

I'm doing research in order to prepare my defense against a reckless
driving summons which was issued to me by a Fairfax County Police
officer several days ago.  I currently live out of state in New York
City and my court date is Tuesday, August 9.  I am a former Virginia
resident with family who still live in Virginia.  I drive to see my
family in Virginia and also occasionally drive for work functions as
well.

The charge was general "Reckless Driving."  There were no specifics
listed, as I was not speeding, nor racing, nor passing a school bus,
nor driving too fast for conditions.

The officer suspected that I was DUI of Alcohol and after performing
four sobriety tests, which I submitted to with full cooperation, asked
me to submit to a breathalizer test.  While taking the breathalizer
test (which I passed), the officers yelled at me throughout the test
to breathe harder.  While issuing the summons, the reporting officer
then said in accusation that I only passed by 0.002 points because I
was not blowing hard in order to avoid a DUI arrest and summons.  In
truth, I was blowing my hardest and the officer was aware that I am an
asthmatic, as the officer came across my asthma search while searching
my person.

Another fact, while issuing the summons, the officer confessed that
she was not following me, but that I had interrupted her "pacing" of a
speeding vehicle, which I had stopped for, before crossing the road. 
She admitted that she did not want to stop me and stopped me only
because she nearly had to slam on her brakes after a slow entry onto
the road.  She was upset that I had interrupted her pacing of another
vehicle and at that point decided to pull me over.

1.  Is it common practice for officers to yell at suspects in order to
get accurate results on breathalizers?  Is this practice legal?  Can
it get my charge dismissed?

2.  My race was listed as "W" or White, even though I am clearly
Hispanic.  Is there a "H" for Hispanic or are Hispanics deemed to be
White or Black by the officer?  It is possible that the officer is
trying to avoid the perception of racial profiling.  Can this get my
charge dismissed?

3.  How can I obtain an incident report which would state the results
of my breathalizer test along with any other activities noted by the
officer during the incident?

4.  Should I get an attorney?

Any help, suggestions and/or advice will be appreciated.

Thank You,

Rodrigo Gonzalez

Hello reegz-ga,

Sounds like you have a situation on your hands. Unfortunately, there?s
not a lot you can do about any of these things except get a lawyer to
help you fight your charge.

While I cannot tell you if it is common practice for an officer to
yell at a subject to blow harder, there is nothing illegal in the fact
their voice may have been raised. In addition, without voice recording
proof of the yelling, there?s not much that can be done since it is
your word against theirs. This is the same for the admission that she
stopped you because you interrupted her pacing of a speeding vehicle.
Without a video tape or recording, it?s quite hard to prove. Did the
cruiser have a running video tape with audio of the stop? You can
contact Fairfax Co. to ask them at:

Deputy Chief of Police for Patrol
4100 Chain Bridge Road
Fairfax, Virginia 22030
703-246-4488
Lt. Colonel Charles K. Peters, Jr.

OR

Information and Policy Services Bureau
4100 Chain Bridge Road
Fairfax, Virginia 22030
703-246-3190
Acting Director: Mr. David J. Ferris

Depending on what jurisdiction you were in at the time, you can fine a
complaint against the officer if you feel their behavior was out of
line. Here is a link to the complaint form you can use for Fairfax Co.
VA
http://www.co.fairfax.va.us/ps/police/ia_complaint.htm

?The Fairfax County Police Department aggressively investigates all
allegations of misconduct lodged against officers and other employees
of the agency. The purpose of these investigations is to determine and
examine all facts and circumstances relevant to the incident in
question. Should such allegations be sustained as a result of the
investigation, appropriate actions will be taken to prevent a future
occurrence of the conduct.
This form is used to file a complaint regarding an officer's or other
employee's conduct or to express dissatisfaction with a policy,
procedure, practice, or level of service provided by the department.?
On this form, you could list the breathalyzer incident, and if you
feel that it was something that should not be done, the listing of a
Hispanic person as white.

I also found this information for you on a MSG Board that may help you
to understand what you?re facing.

?11. 11 The court may reduce any reckless driving offense to improper
driving if "the degree of culpability is slight." §46.2-869 Important.
Under Virginia law, "improper driving" is not a defined crime. As
such, law enforcement offices do not charge a person with this
offense. Instead, a driver is normally charged with an offense which
has been "labeled" as "reckless driving" and, if the circumstances
warrant, the court reduces such charge to "improper driving" for
sentencing purposes.?
http://forum.freeadvice.com/showthread.php?t=248297

Considering the maximum penalty in VA for Reckless Driving is ?up to
one year imprisonment, fines up to $2500 and/or license suspensions.?
I seriously recommend getting a lawyer.

You won?t get your charge dropped on any of this information so far.
However, as has been mentioned in the comments, hiring a lawyer is the
most important part. They know the discovery process and the law, and
may have access and knowledge of information that you as a citizen
would not know about. Here is a listing of Fairfax Co. Attorney?s who
may be able to help you.
http://attorneypages.com/526VA3163/

The one I recommend from reading through them is:

 ?Bose Law Firm lawyers consist of a former Fairfax police officer
able to analyze police procedure and form unique defenses based on
years of experience of conducting hundreds of criminal investigations,
and DUI and traffic arrests.?

Bose Law Firm, PLLC

McLean Offices: 
8180 Greensboro Drive, Suite 775 
McLean (Fairfax County), Virginia 22102 

Springfield Offices: 
 6354 Rolling Mill Place, Suite 102 
 Springfield (Fairfax County), Virginia 22152 

Email: staff@boselawfirm.com

Telephone:                   703.926.3900  
Outside VA Toll Free:     877.372.2827 
Facsimile:                    703.940.1260

If this answer requires further explanation, please request
clarification before rating it, and I'll be happy to look into this
further.

Nenna-GA
Google Answers Researcher

Google Searches:
://www.google.com/search?num=100&hl=en&c2coff=1&safe=off&q=fairfax+co+virginia+reckless+driving+attorneys&spell=1
://www.google.com/search?num=100&hl=en&c2coff=1&safe=off&q=file+a+complaint+with+virginia+police&spell=1

Very good research.  Thank You.  I know now that I need to consult an attorney.

The most important question you ask is #4, and the answer to #4 makes
the answers to all the other questions nearly moot.
YES, you absolutely should get an attorney.  Lawyers have access to
legal research tools to discover case law; they are familiar with
court rules and procedures; and the mere act of engaging a lawyer
indicates that you are SERIOUS about protecting your own rights.

The officer yelling at you, while perhaps unprofessional, was not
illegal and will not get you a dismissal.  The practice of listing
Hispanic or Latino persons as "White" is a common one, and also will
not get you a dismissal.  As for obtaining an incident report, this is
known as the "discovery" process, and a lawyer will be VERY familiar
with it.

Best of luck to you!

Thank you for your advice.  I greatly appreciate it.

Thank You for your wonderful rating anf tip. I'm glad I could be of
help. I hope one of the attorney's I have listed can help you.

Nenna-GA

I'm sorry, and, not anf. My fingers are faster than my spelling today :)

Virginia Reckless driving is a very serious charge. The situation here
is exactly what actions on your part constituted reckless driving? It
sounds to me that it was actually a failure to yield right of way.
While an attorney may be able to get the charge dismissed you will
probably spend 500 to 1500 just on his fee. While Fairfax County is
one of the worst you may be able to handle this on your own if you can
return for your court date.

Assuming that your NY record is clean obtain a certified copy to take
to court. Do not go to trial but try to negotiate for something less
that reckless. Even a speeding ticket with a hefty fine would be
acceptable. The point is that New York does not enter speeding tickets
or other minor violations from Virginia on your record. If they will
not negotiate then ask for a continuance to consult with an attorney
or enter a not guilty plea and ask for a jury trial. Either will give
you time to retain an attorney. Here is a good commentary on Virgina
reckless driving.
http://www.speedingticketcentral.com/Virginia-speeding-ticket.html