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 
 2 

 

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 

 1Appellant testified that at the time of this incident, he 

had activated his emergency equipment, including both his lights 
 3 

 

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. 
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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 
 5 

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, 
 6 

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 
 7 

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 

 

 2It 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."). 
 8 

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 

officer's conduct was grossly negligent in order to prevail.3

 

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. 

 3Gross 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). 
 9 

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). 
 10 

 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 
 11 

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). 
 12 

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 
 13 

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, 
 14 

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.