Weaver v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia

BILLY ROGER WEAVER, JR.
OPINION BY
v. Record No. 0555-98-3 JUDGE SAM W. COLEMAN III
APRIL 13, 1999
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CARROLL COUNTY
Duane E. Mink, Judge

Kimberly L. Osborne (Vaught & Loftin, on
brief), for appellant.

Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Billy Roger Weaver was convicted in a bench trial of driving

while intoxicated in violation of Code § 18.2-266. On appeal,

Weaver contends that his arrest, which occurred approximately 150

feet inside the North Carolina border, was invalid and therefore,

the trial judge erred by admitting into evidence the results of

his breath analysis. Weaver asserts that the arrest was invalid

because the Virginia police officer failed to comply with North

Carolina Gen. Stat. § 15A-403, 1 which requires that a person

1
Any law-enforcement officer of a state
contiguous to the State of North Carolina
who enters this State in fresh pursuit and
continues in this State in such pursuit of a
person who is in immediate and continuous
flight from the commission of a criminal
Continued . . .
pursued and arrested in North Carolina for an offense committed in

a neighboring state be taken before a North Carolina magistrate.

Weaver asks us to hold, in this case of first impression, that the

trial court should have suppressed the breath analysis because it

was obtained as the result of an invalid arrest. We find that the

arrest was valid; therefore, we affirm the conviction.

BACKGROUND

When State Trooper R.R. Campbell passed Weaver’s oncoming

vehicle at night in Carroll County, Weaver did not dim his high

beam lights. Campbell turned, activated his blue lights and

overtook Weaver’s vehicle about a quarter mile from the North

Carolina border. Initially, Weaver made no attempt to stop. When

Weaver did stop his vehicle, he was approximately 150 feet into

North Carolina. As Trooper Campbell approached the driver’s

window of the vehicle, he detected a strong odor of alcohol.

Campbell noticed that Weaver’s eyes were watery and glassy and he

observed open beer containers in the car. Weaver stated that he

Continued . . .
offense, has the same authority to arrest
and hold in custody such person on the
ground that he has committed a criminal
offense in another state which is a criminal
offense under the laws of the State of North
Carolina as law-enforcement officers of this
State have to arrest and hold in custody a
person on the ground that he has committed a
criminal offense in this State.

- 2 -
had consumed three or four beers, the last of which had been about

thirty minutes earlier.

After Weaver failed several field sobriety tests, Campbell

arrested him at 10:20 p.m. for driving under the influence of

alcohol in violation of Code § 18.2-266. Campbell returned to

Virginia and took Weaver before a Virginia magistrate in Carroll

County at 11:10 p.m. where he obtained a warrant for Weaver’s

arrest. After explaining to Weaver his rights under the Virginia

implied consent statute, Code § 18.2-268.2, Campbell administered

a breath test at 11:27 p.m., which registered a .11 percent

alcohol level.

At trial, the court refused to suppress the breathalyzer

certificate of alcohol analysis. The motion to suppress was

based on Weaver’s assertion that Trooper Campbell was required

by the North Carolina statute to take Weaver before a North

Carolina magistrate and because he failed to do so, the arrest

was invalid.

ANALYSIS

In reviewing a trial court’s ruling on a suppression

motion, we assess the evidence in the light most favorable to

the prevailing party, and we refrain from disturbing the trial

judge’s decision unless plainly wrong. See Bynum v.

Commonwealth, 23 Va. App. 412, 415, 477 S.E.2d 750, 752 (1996).

A police officer has authority to arrest within the

jurisdiction in which the officer serves or within statutorily

- 3 -
defined extensions of that area. See Neiss v. Commonwealth, 16

Va. App. 807, 809, 433 S.E.2d 262, 264 (1993). Campbell, a

Virginia State Trooper, arrested Weaver in North Carolina,

outside the jurisdiction of Virginia. However, a North Carolina

statute specifically authorizes a Virginia officer who is in

“hot pursuit” of a person suspected of committing a crime to

arrest the suspect in North Carolina.

Any law-enforcement officer of a state
contiguous to the State of North Carolina
who enters this State in fresh pursuit and
continues in this State in such pursuit of a
person who is in immediate and continuous
flight from the commission of a criminal
offense, has the same authority to arrest
and hold in custody such person on the
ground that he has committed a criminal
offense in another state which is a criminal
offense under the laws of the State of North
Carolina as law-enforcement officers of this
State have to arrest and hold in custody a
person on the ground that he has committed a
criminal offense in this State.

N.C. Gen. Stat. § 15A-403(a) (1997). Trooper Campbell began

pursuing Weaver in Virginia for failing to dim his headlights, a

traffic infraction proscribed by Code § 46.2-1034. North

Carolina Gen. Stat. § 20-131 makes failing to dim headlights

when meeting on-coming traffic an infraction in North Carolina.

Virginia Code § 46.2-937 provides that traffic infractions in

Virginia are treated as misdemeanors for purposes of arrest. 2

2
North Carolina Gen. Stat. § 20-114 authorizes North
Carolina law enforcement officers to arrest individuals for
Continued . . .
Thus, because Campbell was pursuing Weaver for an offense deemed

to be a criminal offense for arrest purposes in both Virginia

and North Carolina, Campbell was acting within his authority as

a police officer, and he had the right to stop and arrest Weaver

in North Carolina. Campbell’s investigation also revealed

probable cause to arrest Weaver for driving while intoxicated, a

criminal offense in violation of Code § 18.2-266 et seq. 3

Accordingly, Weaver’s arrest for driving while intoxicated was

valid.

The North Carolina statute, which appellant claims Trooper

Campbell violated, further requires that the arresting

out-of-state officer take the arrestee before a North Carolina

judicial officer for a probable cause hearing to determine the

lawfulness of the arrest. See N.C. Gen. Stat. § 15A-403(b). 4

Continued . . .
violating various motor vehicle laws, including violations of
N.C. Gen. Stat. § 20-131, failing to dim headlights.
3
North Carolina Gen. Stat. § 20-138.1 makes driving while
under the influence of an impairing substance a misdemeanor
offense in North Carolina; similarly Code § 18.2-266 makes
driving under the influence of intoxicants a misdemeanor offense
in Virginia.
4
N.C. Gen. Stat. § 15A-403(b) states:

If an arrest is made in this State by a
law-enforcement officer of another state in
accordance with the provisions of subsection
(a), he must, without unnecessary delay,
take the person arrested before a judicial
official of this State, who must conduct a
Continued . . .
Upon a finding that an arrest is lawful, the statute directs the

judicial officer to release the arrestee on bail or to commit

the arrestee to custody to await extradition. See id. Although

Trooper Campbell failed to take Weaver before a North Carolina

magistrate for a probable cause hearing, as required by North

Carolina law, the irregularity in complying with that portion of

the North Carolina statute does not invalidate Weaver’s arrest

and, thus, does not render the results of a blood or breath test

inadmissible in a Virginia trial.

The admissibility of evidence is a procedural issue and is,

therefore, governed by the law of the forum state. See Jackson

v. Commonwealth, 14 Va. App. 414, 416, 417 S.E.2d 5, 6 (1992).

“‘Evidence obtained in violation of constitutional proscriptions

against unreasonable searches and seizures may not be used

against an accused. However, our Supreme Court has steadfastly

refused to extend that rule to encompass evidence seized

pursuant to statutory violations, absent an express statutory

provision for suppression.’” See Janis v. Commonwealth, 22 Va.

App. 646, 651, 472 S.E.2d 649, 652 (1996) (quoting Troncoso v.

Commonwealth, 12 Va. App. 942, 944, 407 S.E.2d 349, 350 (1991)).

The officer’s failure to comply with a North Carolina

statute that requires the officer to take the arrestee before a

Continued . . .
hearing for the purpose of determining the
lawfulness of the arrest.

- 6 -
North Carolina magistrate does not constitute a constitutional

violation. Because Trooper Campbell had probable cause to

arrest Weaver and promptly presented Weaver to a Virginia

judicial officer for a probable cause determination after the

warrantless misdemeanor arrest, Campbell made a valid arrest

according to Virginia’s requirements and did not violate

relevant constitutional requirements. See Gerstein v. Pugh, 420

U.S. 103, 124-26 (1975). We hold that an officer’s failure to

comply with the North Carolina procedural statute directing that

an out-of-state arrestee who has fled into North Carolina be

taken before a North Carolina judicial officer does not require

that a Virginia trial court suppress the results of a breath

test which has been taken following a valid arrest and in

accordance with Virginia’s implied consent statute.

In order for the results of a blood or breath test to be

admissible, Code § 18.2-268.2, the Virginia implied consent

statute, requires that the arrest occur within two hours of the

offense. See e.g., Overbee v. Commonwealth, 227 Va. 238,

242-43, 315 S.E.2d 242, 243-44 (1984); Thomas v. Town of Marion,

226 Va. 251, 254, 308 S.E.2d 120, 122 (1983); see also Castillo

v. Commonwealth, 21 Va. App. 482, 486, 465 S.E.2d 146, 148

(1995); Durant v. City of Suffolk, 4 Va. App. 445, 448-49, 358

S.E.2d 732, 734 (1987). Here, Trooper Campbell complied with

Virginia’s implied consent statute by arresting Weaver within

two hours from the time of the offense. The fact that Trooper

- 7 -
Campbell failed to comply with the provision in the North

Carolina statute for taking the arrestee before a North Carolina

magistrate does not render the arrest invalid in Virginia.

Because the results of the breath test were taken in conformity

with the requirements of Code § 18.2-268.2, the breath test

results were admissible.

Accordingly, we uphold the trial court’s refusal to

suppress the breath analysis results, and we affirm the

conviction.

Affirmed.

- 8 -