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 

 

Continued . . . 

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 
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

 

Continued . . . 

2

North Carolina Gen. Stat. § 20-114 authorizes North 

Carolina law enforcement officers to arrest individuals for 
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 . . . 

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. 

 

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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 
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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