                    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
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
     1
      Appellant testified that at the time of this incident, he
had activated his emergency equipment, including both his lights



                                  2
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.




                                3
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



                                4
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,



                                  5
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


                                 6
             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
     2
      It 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.").



                                   7
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
                                                                  3
officer's conduct was grossly negligent in order to prevail.
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.
     3
      Gross 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).




                                   8
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).




                                   9
          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




                                  10
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).




                                    11
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




                                  12
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,




                                  13
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.




                                 14
