2.2 Procedure at the Scene

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2020 Ed.)

2.2 PROCEDURE AT THE SCENE

2.201 Officer in Uniform. Section 19.2-78 of the Virginia Code directs all officers who are making an arrest, search, or seizure on any public road or highway to be dressed in the customary uniform that would make it apparent to "casual observation" that they are police officers. Although this section specifically states that a violation will not render the officer's lawful actions invalid, it may still provide a defense in some circumstances. For example, a driver charged with attempting to elude an officer pursuant to section 46.2-817 of the Virginia Code may, by statute, raise as an affirmative defense the fact that he or she was not aware of being pursued by a police officer.

The Virginia Court of Appeals has approved detention of a suspect by off-duty police officers traveling in unmarked cars who were acting as private citizens outside their jurisdictions. The court has reasoned that these officers are effecting lawful citizen's arrests. A citizen's arrest is lawful only for a felony or for a "breach of the peace" committed in the presence of the citizen. ⁷ In Hudson v. Commonwealth ⁸ and Wilson v. Commonwealth, ⁹ the Virginia appellate courts found that the defendant driver committed a breach of the peace when the defendant "almost [ran]" another driver "off the road." It seems clear from the definition of "breach of the peace" in Hudson that some of the behavior defined as reckless driving under section 46.2-852 of the Virginia Code would constitute a breach of the peace. Although the Supreme Court of Virginia has held that drunkenness is a breach of the peace, ¹⁰ it is unclear whether mere...