PRESENT: ALL THE JUSTICES 

WILLIAM C. HUDSON 

 OPINION BY 

v. Record No. 022703 JUSTICE G. STEVEN AGEE 

 SEPTEMBER 12, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

T. J. Hauler, Judge 

 William C. Hudson ("Hudson") appeals his conviction in the 

Circuit Court of Chesterfield County for refusing to submit to a 

breath test in violation of Code § 18.2-268.3. Prior to trial 

Hudson moved to suppress "all physical and oral evidence arising 

or resulting from" his initial detention which he alleged to be 

unlawful. The trial court denied the motion. 

 On appeal, Hudson assigns as error the trial court's denial 

of the motion to suppress. He also assigns error to the trial 

court's findings that he was deemed to have given consent to a 

breath test and that the Commonwealth met its burden of proving 

that a blood test was unavailable. We will affirm the judgment 

of the trial court. 

I. FACTS AND PROCEEDINGS BELOW 

 On January 26, 2002, Officer Wills of the City of 

Petersburg police department was off-duty, but in uniform 

wearing his badge of authority and driving an unmarked police 

car on Route 288 in Chesterfield County. Officer Wills observed 
Hudson driving in an "erratic" manner, activated his emergency 

lights and caused Hudson to stop his vehicle. Hudson attempted 

to exit his vehicle, but Officer Wills commanded him to remain 

in his car, at one point brandishing his service firearm. He 

did not ask Hudson for identification, interrogate Hudson, or 

search either Hudson or his vehicle. Officer Wills remained at 

his police car behind Hudson's vehicle until Officer McCullough 

of the Chesterfield County Police Department arrived. At no 

time did Officer Wills see Hudson driving within the city limits 

of Petersburg and at no time was Officer Wills within one mile 

of the Petersburg city limits during his observation and stop of 

Hudson. 

 Officer McCullough was asked to respond to a Petersburg 

police officer who "was attempting to make a traffic stop on a 

vehicle in the county that was driving erratically and almost 

ran him off the road." Officer McCullough arrived on the scene 

to find Officer Wills at his police cruiser which was parked 

alongside the road, directly behind Hudson's car. Officer Wills 

told Officer McCullough that he "had to go off the road in order 

to avoid getting rear-ended by [Hudson's] vehicle." Hudson was 

sitting behind the steering wheel of his car which was parked 

but running. Officer McCullough asked Hudson to perform field 

sobriety tests and then arrested him for driving under the 

2
influence. Officer McCullough then transported Hudson to a 

location where he would take a breath alcohol test. 

 At trial, Hudson testified that he attempted to take the 

breath test several times, but the test operator repeatedly told 

him that she was not receiving a valid sample. Hudson testified 

that, due to medical conditions involving his lungs, he was 

unable to provide an appropriate sample. Hudson also testified 

that he requested a blood test and that his request was denied. 

 On rebuttal, Officer McCullough testified that he was in 

the room during Hudson's attempts to take the breath test and 

that from his experience, he could tell Hudson did not properly 

seal his lips tightly around the tube. Officer McCullough 

stated he heard air escaping around the outside of the tube when 

the machine was unable to get a proper sample for analysis. He 

also testified the test operator instructed Hudson "to put a 

proper seal on the tube . . . because all the air was escaping 

around the tube because the seal was not proper." The 

Commonwealth introduced copies of the breath test results, one 

indicating an "invalid" sample and one indicating a "deficient" 

sample. Officer McCullough also testified that Hudson never 

communicated any medical problem or that he was unable to take 

the breath test. 

3
 Hudson was charged with an unreasonable refusal to submit 

to a blood or breath test in violation of Code § 18.2-268.3 and 

convicted. We granted Hudson an appeal. 

II. ANALYSIS 

 Hudson argues on appeal that the initial stop by Officer 

Wills violated his Fourth Amendment rights because it was an 

"unreasonable seizure." His basis for this claim is that 

Officer Wills "made no attempt to investigate any possible 

criminal activity" while awaiting the arrival of Officer 

McCullough. Alternately, Hudson argues that he was not required 

to take any test under Code § 18.2-268.2(B) because Officer 

Wills lacked authority to detain him under Code § 19.2-250 or as 

a private citizen. Hudson's final assignment of error is that 

the Commonwealth failed to meet its burden of proof as to the 

unavailability of a blood test. We disagree with Hudson's 

arguments. 

A. Hudson's assertion that his initial detention by Officer 

Wills violated the Fourth Amendment is barred by Rule 5:25. 

 On appeal, Hudson argues that the trial court erred in not 

granting his motion to suppress claiming the initial stop by 

Officer Wills was an illegal detention under the Fourth 

Amendment. As a consequence, Hudson contends his subsequent 

arrest by Officer McCullough was tainted and thus invalid. 

4
 Although conceding on brief that Officer Wills "had a 

reasonable suspicion to briefly detain him and question him," 

Hudson argues that his Fourth Amendment rights were violated 

because Officer Wills failed to immediately question and 

investigate him while awaiting the arrival of Officer 

McCullough. In Hudson's view, the use of the least intrusive 

means of temporary detention by Officer Wills caused the 

otherwise valid stop (from a Fourth Amendment perspective) to be 

unreasonable and therefore taint the detention and subsequent 

arrest.1

 Hudson presents this argument for the first time on appeal. 

Neither his motion to suppress nor his argument to the trial 

court ever addressed the initial detention by Officer Wills as 

unreasonable because Officer Wills failed to interrogate or 

investigate Hudson before Officer McCullough arrived. Hudson's 

argument is thus barred from consideration on appeal under Rule 

5:25. See Buck v. Jordan, 256 Va. 535, 545-46, 508 S.E.2d 880, 

 1

 Hudson concedes that if Officer Wills was deemed to be 

acting as a private citizen, and not as a police officer when he 

detained Hudson, then his Fourth Amendment argument is "wholly 

inapplicable." United States v. Jacobsen, 466 U.S. 109, 113 

(1984). We will assume, without deciding, that for purposes of 

reviewing Hudson's Fourth Amendment claim Officer Wills was a 

"state actor" under the color of his authority as a police 

officer. In that context, we note the trial court found Officer 

Wills had "ample probable cause" to detain Hudson and the record 

contains ample credible evidence to support that holding. 

5
885-86 (1998) ("We have repeatedly refused to consider issues or 

objections raised for the first time on appeal."). 

B. Officer Wills made a lawful citizen's arrest. 

 Hudson argues he was not required to take a breath or blood 

test under Code § 18.2-268.2(B) because Officer Wills unlawfully 

arrested him. As a consequence, Hudson contends the subsequent 

arrest by Officer McCullough was tainted and also unlawful, so 

the resulting conviction is void. 

 Hudson posits two grounds in support of this argument. 

First, he avers that although Officer Wills lacked authority as 

a police officer to detain or arrest him under Code § 19.2-250, 

the policeman nonetheless cannot be deemed to be a private 

citizen making a citizen's arrest as at common law. Hudson 

argues this is so because Officer Wills acted under "color of 

governmental authority" as a police officer. Accordingly, 

Hudson asserts that Officer Wills' extraterritorial detention of 

Hudson was unlawful as an invalid citizen's arrest. 

 Alternatively, Hudson contends that if Officer Wills is 

considered a private citizen, then he could have made a valid 

citizen's arrest only if Hudson committed a felony. As Hudson's 

acts were a misdemeanor breach of the peace, and not a felony, 

Hudson argues his "arrest" by Officer Wills was unlawful and 

derivatively taints the subsequent arrest by Officer McCullough. 

We disagree. 

6
1. Officer Wills as a Private Citizen 

 Officer Wills lacked statutory authority, acting as a 

police officer, to detain or arrest Hudson because Officer Wills 

was outside the jurisdictional boundary limits set out in Code 

§ 19.2-250.2 Nonetheless, Hudson argues Officer Wills could not 

make a valid "citizen's arrest" as a private citizen because he 

acted under the "color of his badge of authority, in uniform, 

displaying the badge, [and] had blue lights on."3

 We find no merit to Hudson's argument that the "under color 

of office" doctrine applies to this case. That doctrine 

"prohibits a law enforcement officer from using the indicia of 

his or her official position to collect evidence that a private 

citizen would be unable [to] gather." West Virginia v. Gustke, 

516 S.E.2d 283, 292 (W. Va. 1999). It is clear from the record 

 2

 Code § 19.2-250(A) states in pertinent part: 

Notwithstanding any other provision of this 

article and except as provided in subsection 

B hereof, the jurisdiction of the corporate 

authorities of each town or city, in 

criminal cases involving offenses against 

the Commonwealth, shall extend within the 

Commonwealth one mile beyond the corporate 

limits of such town or city. 

3

 We assume that Hudson was "arrested" by Officer Wills as 

at common law. Under the common law, a "citizen's arrest" is 

"defined as [a]n arrest of a private person by another private 

person on grounds that . . . a public offense was committed in 

the arrester's presence." Black's Law Dictionary 104 (7th ed. 

1999). 

7
Officer Wills made no effort to collect any evidence of any kind 

from Hudson. Accordingly, the "under color of office" doctrine 

has no bearing on the case at bar and we reject Hudson's attempt 

to extend the doctrine to include an arrest. 

 In Gustke, the Supreme Court of Appeals of West Virginia 

examined a nearly identical case. A city police officer had 

completed his shift and was driving his marked police cruiser 

outside the city limits on an interstate highway toward his 

home. Under the West Virginia statute,4 much akin to Virginia 

Code § 19.2-250, a local police officer lacks legal authority, 

as a police officer, to effect an arrest outside the corporate 

limits of his municipality. The off-duty officer observed the 

erratic operation of a vehicle on the interstate and engaged his 

emergency lights and stopped the driver. Gustke, 516 S.E.2d at 

286. 

 In actions almost identical to those in the present case, 

the off-duty officer instructed the driver to stay in his 

vehicle and detained him until an authorized local officer 

arrived to arrest him. The off-duty officer did ask the driver 

 4

 W. Va. Code § 8-14-3 provides: "[A]ny member of the police 

force or department of a municipality . . . shall have all of 

the powers, authority, rights and privileges within the 

corporate limits of the municipality with regard to the arrest 

of persons." 

8
for identification, but made no further investigation and did 

not collect any evidence of any kind. Id.

 As in the case at bar, it was conceded in Gustke that the 

initial officer lacked authority under the applicable state 

statute to stop the driver, but the State contended he acted 

lawfully to effect a citizen's arrest. The driver asserted that 

the off-duty officer could not make a citizen's arrest because 

he acted under the "color of office" in that he was in uniform 

with his badge of authority and used his emergency equipment. 

Continuing, the driver argued that the officer, unlike a citizen 

at common law, could not be viewed as acting as a private 

citizen and therefore lacked the power to make a citizen's 

arrest. Id. at 289. 

 The Supreme Court of Appeals of West Virginia reviewed in 

detail the efficacy of a citizen's arrest by a police officer 

outside his territorial jurisdiction. Citing case law from 

eighteen states holding such a police officer had the authority 

as a private citizen to make a citizen's arrest, the Court 

concluded that "in accordance with these numerous authorities, 

we hold that a law enforcement officer acting outside his or her 

territorial jurisdiction, has the same authority to arrest as 

does a private citizen and may make an extraterritorial arrest 

under those circumstances in which a private citizen would be 

authorized to make an arrest." Id. at 291. 

9
 Citing the Florida District Court of Appeals decision in 

State v. Phoenix, 428 So. 2d 262 (Fl. Dist. Ct. App. 1982), the 

Court held the "under color of office" doctrine did not apply 

with respect to the officer in that case. 

But this doctrine does not prevent officers from 

making an otherwise valid citizen's arrest just 

because they happen to be in uniform or otherwise 

clothed with the indicia of their position when 

making the arrest. When officers outside their 

jurisdiction have sufficient grounds to make a 

valid citizen's arrest, the law should not 

require them to discard the indicia of their 

position before chasing and arresting a fleeing 

felon. Any suggestion that officers could not 

make a valid citizen's arrest merely because they 

happened to be in uniform or happened to be in a 

police car at the time they inadvertently 

witnessed a felony outside their jurisdiction 

would be ridiculous. 

Gustke, 516 S.E.2d at 293 (quoting State v. Phoenix, 428 So. 2d 

at 266) (citations omitted).5

 We find the reasoning of the Supreme Court of Appeals of 

West Virginia persuasive. The "under color of office" doctrine 

 5

 A similar approach is taken in the Restatement (Second) of 

Torts § 121(a), as noted in comment d to that section: 

 The peace officer has all the privileges of 

arrest which, by the rules stated in §§ 119 and 

120, are conferred upon one not a peace officer. 

In such a case, his privilege to arrest is not 

dependent upon his being a peace officer; and it 

is immaterial whether he purports to act in his 

capacity as peace officer or as a private person 

or whether he is or is not acting within the 

territorial or other limits of his designation. 

Restatement (Second) of Torts § 121 cmt. d (1965) (emphasis 

added). 

10
simply has no application in this case because Officer Wills 

made no attempt of any type to gather evidence against Hudson. 

He merely detained him until a duly authorized police officer 

arrived. Assuming a private citizen can make a valid citizen's 

arrest in these circumstances, we find it absurd to posit that a 

law enforcement officer, solely because he happens to be in 

uniform and in a police car, could not do so as well. 

 Accordingly, we conclude Officer Wills was acting as a 

private citizen at the time he detained Hudson and possessed the 

same authority to make a citizen's arrest as would any other 

private citizen. We now turn to the issue of whether a 

citizen's arrest would be valid upon the record in this case. 

2. Citizen's Arrest for Breach of the Peace 

 Hudson contends that even if Officer Wills had the 

authority as a private citizen to make a citizen's arrest, that 

he was still not required to take a test under Code § 18.2-

268.2(B). Hudson's rationale is that he could not be the 

subject of a lawful citizen's arrest as his actions were not a 

felony. He distinguishes our prior decision in Tharp v. 

Commonwealth, 221 Va. 487, 270 S.E.2d 752 (1980), and the Court 

of Appeals' decision in Hall v. Commonwealth, 12 Va. App. 559, 

389 S.E.2d 921 (1990), aff'd en banc, Record Nos. 0963-88-1, 

0964-88-1 (June 12, 1990), because those cases involved a police 

 

11
officer, acting outside of his territorial authority, who made a 

citizen's arrest for a felony. Hudson's argument fails because 

a citizen's arrest can be made for a breach of the peace, as 

occurred in this case, as well as a felony. 

 At common law, a private citizen may arrest another for a 

breach of the peace committed in his presence. See Gustke, 516 

S.E.2d at 291-92; see also Carroll v. United States, 267 U.S. 

132, 156-57 (1925) (" 'In cases of misdemeanor, a peace officer 

like a private person has at common law no power of arresting 

without a warrant except when a breach of the peace has been 

committed in his presence . . . .' " (quoting 9 Halsbury's Laws 

of England 612)); accord W. Page Keeton, ed., Prosser and Keeton 

on the Law of Torts § 26 (5th ed. 1984) ("Broadly speaking, 

either an officer or a private citizen may arrest without a 

warrant to prevent a felony or a breach of the peace which is 

being committed . . . in his presence.") (footnotes omitted).6 

 6

 In Byrd v. Commonwealth, 158 Va. 897, 164 S.E. 400 

(1932), we described the general parameters of acts constituting 

a breach of the peace at common law and as recognized in 

Virginia. 

12
Despite argument on brief that he could only be the subject of a 

citizen's arrest for a felony, Hudson conceded at trial that 

"any normal citizen can pull somebody over for breach of the 

peace."

 At trial, Officer McCullough described Officer Wills' 

observation of Hudson's conduct as follows: 

 [Officer Wills] was almost run off the road. 

He had to go off the road in order to avoid 

getting rear-ended by this vehicle. 

 He said that he at that point realized that 

it was a serious circumstance. The vehicle was 

weaving all over the road. He thought it was 

paramount that he stop the vehicle; therefore he 

made a stop before I could get there. 

 

"By 'peace' as used in the law in this 

connection, is meant the tranquility enjoyed 

by the citizens of a municipality or 

community where good order reigns among its 

members. It is the natural right of all 

persons in political society, and any 

intentional violation of that right is 'a 

breach of the peace.' It is the offense of 

disturbing the public peace, or a violation 

of public order or public decorum. Actual 

personal violence is not an essential 

element in the offense." 

Id., 158 Va. at 902-03, 164 S.E. at 402 (quoting Davis 

v. Burgess, 20 N.W. 540, 542 (Mich. 1884)). 

See also 4 William Blackstone, Commentaries on the Laws of 

England 1541 n.1 (William Draper Lewis ed., 1898) ("Offenses 

against the public peace include all acts affecting the public 

tranquility, such as assaults and batteries, riots, routs and 

unlawful assemblies, forcible entry and detainer, etc." (quoting 

City of Corvallis v. Carlile, 10 Or. 139, 142 (1882)). 

13
 Whether Officer Wills suspected Hudson was driving while 

intoxicated or not, Hudson's dangerous conduct on a public 

highway, in and of itself was a breach of the peace under any 

definition of that concept. Hudson's driving presented a clear 

and present danger not only to Officer Wills, but to any person 

or their property on or near the highway. Hudson's actions in 

forcing Wills off the road and driving so as to imperil others 

clearly constituted a breach of the peace sufficient to justify 

a citizen's arrest. The similarity of Hudson's dangerous 

driving to that of an intoxicated driver only makes the case 

stronger. See Gustke, 516 S.E.2d at 291-92 (citing multiple 

cases applying the concept of breach of the peace). 

 The common law in Virginia permits a citizen to effect an 

arrest for a breach of the peace occurring in his or her 

presence. Hudson's dangerous driving, in and of itself, 

regardless whether he was under the influence of intoxicants, 

constituted a breach of the peace committed in the presence of 

Officer Wills. Although Officer Wills was without authority as 

a police officer, he was fully entitled, as a private citizen, 

to effect a citizen's arrest of Hudson as at common law for the 

breach of the peace committed in his presence. 

 Since the citizen's arrest by Officer Wills was lawful and 

valid, the subsequent arrest by Officer McCullough was as well. 

C. The accused bears the initial burden 

14
 of proof under Code § 18.2-268.2(B). 

 Hudson also asserts on appeal that the trial court erred in 

convicting him of violating Code § 18.2-268.3 because he 

established he was unable to take the breath test and the 

Commonwealth then failed to meet the burden of proof under Code 

§ 18.2-268.2(B) that a blood test was unavailable. We disagree. 

 In its 1995 revision to Code § 18.2-268.2, the General 

Assembly eliminated the statutory provision which gave a person 

arrested for driving while intoxicated a choice of either a 

blood or breath test. Acts, 1994 cc. 359 and 363. In its 

place, the General Assembly amended Code § 18.2-268.2(B) which 

now provides that a blood test "shall be given" only when the 

breath test is "unavailable" or when the person arrested is 

"physically unable to submit to the breath test." Hudson 

asserts, based on his trial testimony, that he was physically 

unable to submit to the breath test and instead requested a 

blood test. He contends the trial court committed reversible 

error by not then requiring the Commonwealth to prove that a 

blood test was unavailable. 

 This Court has not addressed the issue raised by Hudson as 

to the allocation of the burden of proof under Code § 18.2-

268(B). In Lamay v. Commonwealth, 29 Va. App. 461, 513 S.E.2d 

411 (1999), the Court of Appeals considered which party bears 

15
the burden of proving inability to take the breath test and 

reached this conclusion: 

 Because it is the accused driver whose physical 

inability is at issue in such situations, logic 

dictates that the burden should fall on the 

accused to establish that fact. After an accused 

presents evidence of his physical inability, the 

Commonwealth is entitled to present evidence in 

rebuttal, after which it rests upon the trial 

court to determine whether the accused satisfied 

his or her burden. 

Id. at 473, 513 S.E.2d at 417. We find the Court of Appeals' 

reasoning persuasive. 

 In a proceeding involving an unreasonable failure to 

consent to a breath test under Code § 18.2-268.2(B), the burden 

rests upon the accused driver to produce evidence that he was 

physically unable to take the test. Once the accused driver 

places that evidence before the trial court, the Commonwealth 

may present evidence in rebuttal. A trial court's determination 

that the accused driver has carried his burden of proof as to 

physical inability is a condition precedent to any finding that 

the Commonwealth was required to offer a blood test.7

 7

 In his argument to this Court Hudson contends that "if the 

defendant is able to demonstrate that he was physically unable 

to submit to breath testing, the burden shifts to the 

Commonwealth to prove that a blood test was not available." 

This argument would be more persuasive with respect to the prior 

version of the statute which allowed the accused to choose 

between a breath or blood test. Pursuant to current Code 

§ 18.2-268.2(B), once the trial court found that Hudson had not 

carried his burden of proof, the Commonwealth was relieved of 

any further burden and no blood test was required to be given 

16
 Hudson contends that he met the burden of proving his 

physical inability to take the breath test when he testified at 

trial that he has a lung disease which caused him to "experience 

severe difficulty breathing," and that he told the administering 

officer of the disease and requested a blood test. The 

Commonwealth, however, called Officer McCullough to rebut 

Hudson's testimony. Officer McCullough testified that he was 

present when the breath test was attempted and yet he did not 

hear Hudson make any statements regarding a medical condition. 

Furthermore, Officer McCullough, who testified he had years of 

experience witnessing breathalyzer tests, asserted that he could 

"constantly hear air escaping from around the tube" while Hudson 

was taking the test, despite instructions from the certified 

test operator to Hudson "to put a proper seal on the tube." 

Officer McCullough stated, "You can . . . tell when a tube is 

sealed properly and they are actually attempting to blow into 

the tube, but they are physically incapable of blowing into the 

tube. This was different." 

 After considering both Hudson's testimony and the 

Commonwealth's rebuttal, the trial court obviously placed 

greater weight on Officer McCullough's testimony, and the 

evidence in the record is sufficient to support that conclusion. 

 

even if requested by the defendant. Had the trial court 

determined Hudson had met his burden, the Commonwealth would 

17
Hudson therefore failed to carry his burden of proof that he was 

unable to submit to the breath test and no blood test was 

required to be offered. 

III. CONCLUSION 

 For the reasons set out above, we find no error in the 

judgment of the trial court. Hudson's Fourth Amendment argument 

is barred by Rule 5:25. Although he lacked statutory authority 

as a police officer to detain Hudson, Officer Wills was lawfully 

entitled to effect a citizen's arrest for the breach of the 

peace by Hudson committed in his presence. Finally, Hudson 

failed to meet his burden of proof that he was physically unable 

to take a breath test so no blood test was required. 

 The judgment of the trial court will, therefore, be 

affirmed. 

Affirmed. 

 

have been required to produce the results of a blood test. 

18