COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
Argued at Salem, Virginia
JAMES L. PHILLIPS
OPINION BY
v. Record No. 1419-96-3 JUDGE JOHANNA L. FITZPATRICK
JULY 8, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
Robert C. Hagan, Jr., for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
On May 9, 1996, James L. Phillips, a police officer, was
convicted in a bench trial of reckless driving in violation of
Code § 46.2-852. On appeal, Phillips (appellant) contends that
the trial court erred in (1) failing to apply a "reasonable
officer" standard of care to determine his guilt, and (2) finding
the evidence sufficient to convict. For the reasons that follow,
we affirm the judgment of the trial court.
I. BACKGROUND
On March 1, 1996, Dennis Dew (Dew) was driving north on
Route 220 in Botetourt County. Route 220 is a two-lane road, and
the lanes are separated by a double yellow line. Within the town
limits, the road has three passing zones, and the speed limit is
thirty-five miles per hour. As Dew was driving, he saw several
cars, including a tractor trailer, coming toward him from the
opposite direction in the other lane. He saw another car, going
in the same direction as the tractor trailer, "jump[] out from
behind the tractor trailer" and enter his lane. Dew recognized
the car as a police car and noticed the car's flashing lights.
He did not hear a siren. All four tires of the police car
crossed into Dew's lane. Dew slammed on his brakes to avoid
hitting the police car. At trial, Dew testified that when he saw
the police car enter his lane, the tractor trailer was
approximately ten car lengths away from him, and that he was
travelling at about forty-five to fifty miles per hour. Dew
never came to a complete stop, and he stated that the police car
missed hitting him by "about a foot or two, maybe three."
While on duty on the morning of March 1, 1996, appellant, a
police sergeant for the Town of Iron Gate, observed several
vehicles pass him. He recognized the license plate of one of the
vehicles and suspected that the driver was driving on a suspended
license. He also saw, in the front seat of the vehicle, a small
child leaning up against the dashboard. Appellant radioed his
dispatcher to determine whether the owner of the vehicle had a
suspended license. The dispatcher confirmed appellant's
suspicion. After following the suspect vehicle for some
distance, appellant activated his emergency equipment. He
observed the driver of the tractor trailer, which was between his
car and the suspect vehicle, glancing in the rear-view mirror and
looking for a place to pull over. 1 Appellant testified that the
1
Appellant testified that at the time of this incident, he
had activated his emergency equipment, including both his lights
2
tractor trailer eventually pulled over onto a gravel shoulder.
As appellant passed the tractor trailer while still in pursuit of
the suspect vehicle, he saw Dew's vehicle approaching from about
450 feet away.
Additionally, appellant testified as follows:
[W]hen I pulled out as I would do in any
situation . . . I carefully, as he pulled
over I carefully nosed out to where I could
see if there was traffic approaching. And I
did see a car approaching . . . . I had my
emergency equipment activated. I had my
siren on automatic. As the tractor trailer
pulled off I saw the car heading towards me
northbound. I saw him start to brake and
slow down and move to the right . . . .
[M]y immediate thought was thank
goodness that this is a citizen that is
yielding, he sees my emergency equipment and
he is yielding to give me passage and I came
around the tractor trailer, I did accelerate
around the tractor trailer and stopped the
violator approximately . . . two-tenths of a
mile in front of where I passed the tractor
trailer.
To the best of my recollection I was
back in the southbound lane before I even
encountered Mr. Dew.
Lee Turlington (Turlington), Assistant Attorney General,
testified for appellant at trial. She stated that she possessed
special expertise in the legal aspects of emergency driving;
however, she admitted that she had never been called to consult
and his siren. Dew testified that he saw the police car's
flashing lights, but did not hear the siren. The trial court
made no finding on the issue of the siren. For purposes of this
opinion, we assume without deciding that appellant activated all
the emergency equipment.
3
on a criminal charge against an officer. Turlington testified
that in civil cases the standard of care in vehicular pursuits is
a "reasonable police officer" standard, rather than a "reasonable
man" standard, and that the court should view the exercise of
care through the police officer's eyes rather than through the
eyes of a reasonable man.
Additionally, Turlington stated that when instructing law
enforcement officers on the legal aspects of emergency driving,
she specifically reviews the Code § 46.2-920 exemptions and she
teaches that:
[C]rossing a double yellow line as well as
going . . . the wrong way down a one way
street is not covered by the statute and
. . . the rule is that you do not do it. But
in certain circumstances . . . an officer may
find him or herself in the position of having
to cross a double yellow line because of the
particular circumstances of the case.
When asked how she would instruct police officers regarding their
discretion and responsibility if they decide to cross a double
line, Turlington responded as follows:
[A]s far as personal responsibility,
that they're not covered by the statute and
that, of course, they put themsel[ves] at
risk, I guess, of criminal prosecution
because . . . the statute actually exempts
you from criminal prosecution but that in
certain circumstances . . . some discretion
and not only due regard but some
extraordinary prudence would be necessary in
making that decision.
The trial court declined to adopt the "reasonable officer"
standard as applied in civil cases. Additionally, the court
4
emphasized that no emergency justified appellant's actions and
found as follows:
As to the standard of care here it seems to
me, I don't have any appellate decisions
apparently to guide me so I'll fashion what I
believe common sense dictates. Except as
provided by statute whereby the common law,
if there is any common law on it, in a lawful
and legitimate hot pursuit, a reason to
believe that the operation of a vehicle
endangers life or property or reason to
believe that the continued operation would
endanger the occupants of the vehicle pursued
there is no legitimate basis to hold a
traffic law enforcement officer to a
diminished standard of care that would in any
way be different from what we would require
of our ordinary citizens. . . . But it seems
to me that the standard here is that of a
reasonable person and that discretion needed
to be exercised or abused and I must conclude
that it was abused.
(Emphasis added). Thus, the court convicted appellant of
reckless driving.
II. STANDARD OF CARE
Appellant contends that the trial court erred in holding him
to an "ordinary" or "reasonable" person standard. He asserts
that the trial court should have employed the standard of gross
negligence as applied in certain civil cases, and thus should
have held him to the standard of a "reasonable police officer."
It is well established that a police officer is under a duty
to operate his or her vehicle in a manner that is reasonable
under the existing circumstances and conditions. See Meagher v.
Johnson, 239 Va. 380, 383, 389 S.E.2d 310, 311 (1990). Although
police vehicles generally are subject to all traffic regulations,
5
the legislature may provide exceptions in certain circumstances.
See, e.g., Smith v. Lamar, 212 Va. 820, 822-23, 188 S.E.2d 72,
73 (1972) (citing Virginia Transit Co. v. Tidd, 194 Va. 418, 73
S.E.2d 405 (1952)); Colby v. Boyden, 241 Va. 125, 133, 400 S.E.2d
184, 189 (1991) (Compton, J., dissenting).
A. Code § 46.2-920 Exemptions
The Virginia General Assembly has provided limited
exemptions from criminal prosecution for specified violations of
traffic regulations by police officers. Code § 46.2-920 provides
that the driver of an emergency vehicle that is being used (1) in
the performance of public services and (2) under emergency
conditions may, without subjecting himself or herself to criminal
prosecution, violate traffic regulations in the following six
specific situations:
1. Disregard speed limits, while having due
regard for safety of persons and property;
2. Proceed past any steady or flashing red
signal, traffic light, stop sign, or device
indicating moving traffic shall stop if the
speed of the vehicle is sufficiently reduced
to enable it to pass a signal, traffic light,
or device with due regard to the safety of
persons and property;
3. Park or stop . . .;
4. Disregard regulations governing a
direction of movement of vehicles turning in
specified directions so long as the operator
does not endanger life or property;
5. Pass or overtake, with due regard to the
safety of persons and property, another
vehicle at any intersection;
6. Pass or overtake with due regard to the
6
safety of persons and property, while en
route to an emergency, other stopped or
slow-moving vehicles, by going off the paved
or main traveled portion of the roadway on
the right.
Code § 46.2-920(A). The Supreme Court explained the rationale
behind Code § 46.2-920 as follows: "In enacting [Code
§ 46.2-920], the legislature balanced the need for prompt,
effective action by law enforcement officers and other emergency
vehicle operators with the safety of the motoring public."
Colby, 241 Va. at 132, 400 S.E.2d at 188-89. The purpose of Code
§ 46.2-920 is to give some leniency to the drivers of police,
fire and ambulance vehicles in certain emergency situations.
See, e.g., Phillips v. United States, 182 F.Supp. 312 (E.D.Va.
1960). However, this statute does not cover the crossing of a
double yellow line, which is the conduct at issue in the instant
case. 2 Nor did appellant's pursuit present an emergency
situation.
B. The Civil Standard for Exempted Behavior
The Supreme Court has held that, in determining the civil
liability of a police officer for violating an act exempted by
Code § 46.2-920, the appropriate standard to apply is not that of
an "'ordinary person or 'ordinary motorist'" but that of "an
2
It is notable that the legislature provided that these
exemptions do not shield a police officer or the driver of
another emergency vehicle from criminal prosecution for conduct
that is reckless. See Code § 46.2-920(B) ("Such exemptions shall
not, however, protect the operator of any such vehicle from
criminal prosecution for conduct constituting reckless disregard
of the safety of persons and property.").
7
officer performing his duty under like circumstances." Colby,
241 Va. at 131, 400 S.E.2d at 188 (citing Smith, 212 Va. at 824,
188 S.E.2d at 74). Additionally, proving simple negligence is
insufficient to impose civil liability for acts covered under
Code § 46.2-920. See id. at 130-31, 400 S.E.2d at 187-88. The
Court explained that the exemption statute "tailored" a standard
to the particular acts recited therein. See id. at 132, 400
S.E.2d at 188. Thus, for an act exempted under Code § 46.2-920,
a plaintiff in a civil action must establish that the police
3
officer's conduct was grossly negligent in order to prevail.
Id.; see also Meagher, 239 Va. at 383, 389 S.E.2d at 383-84
(holding that any failure of a police officer to operate his
vehicle in a reasonable manner is actionable only if it amounts
to gross negligence in the case of exempted behavior).
C. The Civil Standard for Acts Not Exempted
The Supreme Court has also addressed cases in which a police
officer's conduct was not covered by the exemptions of Code
§ 46.2-920 and its predecessors and has set forth a different
standard of care for these situations. Virginia Transit Co. v.
3
Gross negligence is the "'heedless, palpable violation of
rights showing an utter disregard of prudence'" and the "'absence
of slight diligence, or the want of even scant care.'" Meagher,
239 Va. at 384, 389 S.E.2d at 311-12; Colby, 241 Va. at 133, 400
S.E.2d at 189 (citations omitted). Thus, in committing an act
covered by Code § 46.2-920, if a police officer exercises "'some
degree of diligence and due care'" and his actions do not reveal
the "'utter disregard of prudence amounting to complete neglect
of the safety of another,'" then a prima facie case of gross
negligence is not established. See Colby, 241 Va. at 133, 400
S.E.2d at 189 (citation omitted).
8
Tidd, 194 Va. 418, 73 S.E.2d 405 (1952), involved a civil suit
brought to recover damages for personal injuries resulting from a
collision involving a police vehicle. In that case, the police
officer while en route to an investigation of an automobile
accident, "made no effort to slow down," entered an intersection
against the red light, and collided with a city bus. Id. at 420,
73 S.E.2d at 407. The Court held that where no statutory
exemption permits a police officer to pass through a red light at
an intersection, the police officer may be negligent as a matter
of law. Id. at 425, 73 S.E.2d at 410. 4
In reaching this decision, the Court explained:
It is argued that if a police car giving
an audible signal cannot run through a red
traffic light then we would have the
ridiculous situation of escaping law
violators going joyfully on their way, while
the police wait for a green light. But it
can just as well be argued to the contrary
that the legislature was willing to take a
chance on giving violators of the law a head
start rather than endanger the lives of those
who rely upon the safety of a green light.
Id. at 423-24, 73 S.E.2d at 409. Moreover, the Court determined
that the legislature enacted certain statutory exemptions to
permit "police officers in the chase or apprehension of violators
of the law to exceed the general speed laws" and reasoned that:
4
"In Virginia Transit Co. v. Tidd, 194 Va. 418, 73 S.E.2d
405 (1952), we held that police vehicles were subject to all
traffic regulations unless a specific exception is made.
Thereafter the General Assembly of Virginia granted the
conditional exception which permits a police vehicle to proceed
through a red light." Smith v. Lamar, 212 Va. 820, 822-23, 188
S.E.2d 72, 74 (1972).
9
The fact that the legislature saw fit to make
a specific exception in this instance is an
added reason why no implied exception may be
read into [the statute] in order to permit
police officers to run through red lights.
Id. at 424, 73 S.E.2d at 409 (emphasis added).
The Court reaffirmed this rationale in White v. Doe, 207 Va.
276, 148 S.E.2d 797 (1966). There a police officer brought a
motion for judgment for injuries sustained when his motorcycle
crashed during a chase to apprehend a criminal suspect. In that
case, the police officer argued that, "since he was a police
officer attempting to apprehend a law violator, much like a
volunteer attempting to rescue a person in danger, he was not
charged with the same degree of care as is required of the
ordinary person." Id. at 278, 148 S.E.2d at 799. The Supreme
Court disagreed and found him contributorily negligent as a
matter of law. A violation of the statute defining reckless
driving "'is negligence sufficient to support a civil action if
such negligence was the proximate cause of the injury or damage
sustained.'" Id. at 280, 148 S.E.2d at 800 (quoting Richardson
v. Commonwealth, 192 Va. 55, 56, 63 S.E.2d 731, 731 (1951)). In
so holding, the Court again examined the exemption statute.
Finding no specific provision exempting a police officer from
compliance with the law prohibiting the overtaking or passing of
other vehicles at intersections, the Court held that "police
vehicles are subject to the laws regulating traffic, for the
violation of which the operator of such a vehicle is guilty of
10
negligence as a matter of law." Id. at 279-80, 148 S.E.2d at
799. The Court explained as follows:
The legislature, having dealt with the
subject of the relationship of the traffic
laws to police vehicles in such a selective
manner, has clearly indicated that the
operators of such vehicles are bound to
observe the requirements of [the reckless
driving statute] in the same manner as the
operators of ordinary vehicles.
And, since the only exceptions which are
provided relate directly to police vehicles
engaged in the apprehension of law violators,
it is inescapable that [the reckless driving
statute], to which there are no exceptions,
must be observed by the operators of police
vehicles even while engaged in the
apprehension of law violators.
Id. (emphasis added). 5
The rationale stated in Virginia Transit Co. and White,
while involving civil negligence, is equally applicable to the
instant case, which involves the criminal liability of a police
officer. The conduct at issue in this case is not covered by the
exemption statute. Moreover, even the exemptions of Code
§ 46.2-920 "do not protect the operator of any vehicle from
criminal prosecution for conduct constituting reckless disregard
for the safety of persons and property." Smith, 212 Va. at 822,
188 S.E.2d at 74; see also Code § 46.2-920(B). Indeed,
5
"We reaffirmed Tidd in White v. John Doe, 207 Va. 276, 148
S.E.2d 797 (1966)[,] and applied the statutory mandate against a
police vehicle overtaking or passing another vehicle in an
intersection. Subsequently the General Assembly of Virginia
granted a conditional exception applicable to such overtaking and
passing at an intersection." Smith v. Lamar, 212 Va. 820, 823,
188 S.E.2d 72, 74 (1972).
11
appellant's own expert witness noted this provision as clearly
stated in Code § 46.2-920. Additionally, Code § 46.2-801
mandates that all drivers are subject to Chapter 8 of Title 46.2,
which includes Code §§ 46.2-800 through 46.2-946.
The conduct at issue, passing on a double yellow line, is
not exempted behavior. Thus, the officer is subject to criminal
prosecution as would be any other citizen. See Virginia Transit
Co., 194 Va. 418, 73 S.E.2d 405. Further, no heightened standard
of care is merited in a situation where no exemption applies.
Id. Appellant's contention that his conduct is to be judged by a
standard other than that applied to the conduct of "ordinary"
persons is unsupported either by Virginia case law or by Virginia
statutory law. Finally, we note that "[i]f the General Assembly
had desired to permit drivers of police vehicles, under certain
circumstances, to" cross a double yellow line, "it would have
done so or it can now do so. It is not the function of th[is]
[C]ourt to legislate or to use the office of construction to
amend plain statutes." Virginia Transit Co., 194 Va. at 425, 73
S.E.2d at 409. Accordingly, we find no error in the trial
court's determination of the proper standard of care to be
applied.
III. SUFFICIENCY OF THE EVIDENCE
Lastly, appellant contends that the evidence was
insufficient to convict him of reckless driving in violation of
Code § 46.2-852, which provides as follows: "Irrespective of the
12
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." (Emphasis added). See also Code
§ 46.2-804(6) ("Wherever a highway is marked with double traffic
lines consisting of two immediately adjacent solid lines, no
vehicle shall be driven to the left of such lines . . . .").
"'When considering the sufficiency of the evidence on appeal of a
criminal conviction, we must view all the evidence in the light
most favorable to the Commonwealth and accord to the evidence all
reasonable inferences fairly deducible therefrom.'" Woolfolk v.
Commonwealth, 18 Va. App. 840, 844, 447 S.E.2d 530, 532 (1994)
(quoting Traverso v. Commonwealth, 6 Va. App. 172, 176, 366
S.E.2d 719, 721 (1988)). "[W]e will not disturb the trial
court's judgment unless it is plainly wrong or without evidence
to support it." Goins v. Commonwealth, 251 Va. 442, 466, 470
S.E.2d 114, 130, cert. denied, ___ U.S. ___, 117 S. Ct. 222, 136
L.E.2d 154 (1996). "Further, '[t]he weight which should be given
to evidence and whether the testimony of a witness is credible
are questions which the fact finder must decide.'" Woolfolk, 18
Va. App. at 844, 447 S.E.2d at 532 (quoting Bridgeman v.
Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601-02
(1986)). Reckless driving is a criminal offense and to sustain a
conviction, the Commonwealth's evidence must establish guilt
beyond a reasonable doubt. Bacon v. Commonwealth, 220 Va. 766,
13
263 S.E.2d 390 (1980).
Viewing the evidence in the light most favorable to the
Commonwealth, the prevailing party, the trial court did not err
in finding appellant guilty of reckless driving. Appellant, in
pursuing a driver suspected of operating her vehicle with a
suspended license, crossed the double yellow line and entered an
oncoming driver's lane. At the time he entered Dew's lane,
appellant was approximately ten car lengths from him and this
action forced Dew to "slam" on his brakes in order to avoid a
collision. Appellant missed hitting Dew by "about a foot or two,
maybe three." Further, no emergency situation warranted
appellant's act of crossing the double yellow line. The judgment
of the trial court was not plainly wrong or without evidence to
support it.
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed.
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