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.
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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
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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.
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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
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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.
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