In Virginia, the crime of hit and run (46.2-894, 46.2-895, 46.2-896 and 46.2-897) can be hard to prove for several reason.
First, the police do not personally witness most hit and run cases. The police are dependent on witnesses for their most essential information. Depending on citizen witnesses makes the prosecutions job more difficult. Citizen witness cannot or do not always show up to court, citizen witnesses can be erratic and unreliable, Citizen witnesses can have strong incentives to lie or exaggerate on the stand, and relying on citizen witnesses increase the chances of a miscommunication between the police, the prosecution, and the witness.
Second, For misdemeanor hit and run, the police cannot arrest a driver without an arrest warrant in most cases. Unless the police officer witnessed the driver commit the hit and run then typically the arresting officer must go to a magistrate and get an arrest warrant before they can arrest the driver. If an officer illegally arrests without an arrest warrant the charges may be challenged and dismissed.
Third, it can be very hard to prove who the drive was without a confession by the defendant. Most witnesses do not see the driver, they see the car. If the witness did not get a good look at the actual driver at the time of the hit and run then most cases will require a confession or some other strong corroborating evidence. Proving that the car is registered to the defendant and even proving that the defendant was in the car at the time of the accident is not enough in many situations.
Fourth, the difference between felony hit and run, a licenses suspension, jail time, or a small fine has to do with the cost of the damage and whether or not the property was attended and whether there was any injuries.
For unattended property it can be very difficult to prove the cost of the damage. Often hit and runs involve damage to property owned by businesses, governments, or other large organizations. If a driver knocks down a light pole or destroys a guard rail and then leaves the scene, how can the prosecution prove the cost of repairing the damage. Often it is difficult to find who is responsible for repairing the damage and then to track down someone who has first hand knowledge of the cost of those repairs. Obeying the rules of evidence and proving the cost of the damages can be very difficult.
If a Defendant is charged with felony hit and run the defendant is facing up to 10 years in prison and a 6 month loss of license. However, if the government cannot prove injuries or the cost of the damages then the court may only find the defendant guilty of the lowest form of hit and run which is a class 4 misdemeanor and carries a max fine of $250 fine and no license suspension. Proving injuries and the cost of damages is very important.
Fifth, there are many defenses to hit and run. If the Defendant sustained injuries in the accident which prevented him from stopping and exchanging information then the Defendant’s does not have a duty to stop but only must report the accident as soon as possible. If the Defendant hit unattended property the Defendant only has to make a reasonable effort to locate the owner or leave a note. It can also be a defense to hit and run if the Driver could not have reasonably know that there was an accident (i.e. backing into a parked car at a very low speed and not knowing) so the prosecution must prove that Defendant should have reasonably known there was an accident.
These are jsut a few of the defenses to hit and run. If you have been charged with hit and run, talk to an attoreny immediately, you may have a much better case than you realise.
Luke J. Nichols
