                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judges Alston and AtLee
UNPUBLISHED


              Argued at Richmond, Virginia


              VICTOR CLAY BARRINGER
                                                                               MEMORANDUM OPINION BY
              v.     Record No. 0235-17-3                                      JUDGE ROSSIE D. ALSTON, JR.
                                                                                   FEBRUARY 27, 2018
              COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
                                               Anita D. Filson, Judge

                                 Cerid Lugar (Mark Steven Osborne, II; Lugar Law, on brief), for
                                 appellant.

                                 Lauren C. Campbell, Assistant Attorney General (Mark R.
                                 Herring, Attorney General, on brief), for appellee.


                     Following a bench trial in the Circuit Court of Rockbridge County (“trial court”), Victor

              Clay Barringer (“appellant”) was convicted of misdemeanor reckless driving under Code

              § 46.2-856. This section provides, in relevant part, that “[a] person shall be guilty of reckless

              driving who passes or attempts to pass two other vehicles abreast, moving in the same direction,

              except on highways having separate roadways of three or more lanes for each direction of travel,

              or on designated one-way streets or highways.” On appeal, appellant asserts that the trial court

              erred by finding that the exception contained within the statute did not apply to his conduct.

              Alternatively, appellant asserts that the entire statute is inapplicable to his conduct. For the

              reasons stated below, we agree with appellant that the statute does not apply.




                     
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                          BACKGROUND

       On August 7, 2016, appellant was traveling northbound on Interstate 81 when he became

caught in a traffic jam due to a car accident. Attempting to avoid the gridlock, appellant steered

his vehicle onto the shoulder of Interstate 81 to bypass several other vehicles and exit the

highway via an exit ramp. No sign authorizing or directing the use of the shoulder was posted.

A state trooper observed appellant’s conduct, initiated a traffic stop, and issued a summons under

Code § 46.2-856.

       At his bench trial in the trial court, appellant argued that the exception within the statute

applied to his conduct. That exception allows a passing movement if the highway has three or

more lanes of travel, and the section of Interstate 81 where the incident occurred has three lanes

of travel and an emergency shoulder. The trial court disagreed, convicted appellant under the

statute, and imposed a fine of $250. This appeal followed.

                                             ANALYSIS

       On appeal, appellant requests that this Court either hold that the exception within the

statute permits his conduct, or alternatively, construe the entire statute as inapplicable. Because

we conclude that the statute is inapplicable to appellant’s conduct, we do not address appellant’s

first argument.

       “[T]o the extent the appellant’s assignment of error requires ‘statutory interpretation, it is

a question of law reviewed de novo on appeal.’” Coomer v. Commonwealth, 67 Va. App. 537,

545, 797 S.E.2d 787, 791 (2017) (quoting Grimes v. Commonwealth, 288 Va. 314, 318, 764

S.E.2d 262, 264 (2014)). Case law directs that courts must apply the plain meaning of a statute

and may not add to or ignore the text of the Code. Signal Corp. v. Keane Fed. Sys., 265 Va. 38,

46-47, 574 S.E.2d 253, 257 (2003). In other words, “[w]hen the language of a statute is plain

and unambiguous, we are bound by the plain meaning of that language.” Vaughn, Inc. v. Beck,

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262 Va. 673, 677, 554 S.E.2d 88, 90 (2001) (emphasis added) (citing Cummings v. Fulghum,

261 Va. 73, 77, 540 S.E.2d 494, 496 (2001)).

         This Court has not yet considered a case challenging the applicability of Code

§ 46.2-856, but a reasonable interpretation of the plain language of Code § 46.2-856 clearly

manifests an effort by the General Assembly to regulate highway traffic by limiting passing

movements unless certain circumstances are present. This desire to minimize accidents and

dangerous driving accomplishes that objective by only allowing drivers to pass two other

vehicles abreast when travelling on a highway that has three separate lanes of travel, assuming

that the third lane is sufficiently clear for a driver to safely engage in a passing movement.

         Considering the legislative intent, it becomes apparent that the statute does not apply to

appellant’s conduct – the undisputed evidence is that appellant was not attempting to pass two

vehicles abreast to proceed further down a highway. Rather, he was attempting to avoid a traffic

jam by moving onto the shoulder and bypassing other vehicles while heading toward an exit

ramp.1




         1
         It is suggested that appellant engaged in conduct prohibited under the text of a different
code section, Code § 46.2-841(B), which provides that

                [t]he driver of a vehicle may overtake and pass another vehicle on
                the right only under conditions permitting such movement in
                safety. Except where driving on paved shoulders is permitted by
                lawfully placed signs, no such movement shall be made by driving
                on the shoulder of the highway or off the pavement or main
                traveled portion of the roadway.

We express no opinion on the culpability of appellant under that statute. We do note, however,
that “[w]hen one statute speaks to a subject in a general way and another deals with a part of the
same subject in a more specific manner, the two should be harmonized, if possible, and where
they conflict, the latter prevails.” Peerless Ins. Co. v. Cty. of Fairfax, 274 Va. 236, 244, 645
S.E.2d 478, 483 (2007) (quoting Virginia Nat’l Bank v. Harris, Adm., 220 Va. 336, 340, 257
S.E.2d 867, 870 (1979)). Considering appellant’s conduct under both statutes, it is clear that the
two statutes cannot be harmonized and that Code § 46.2-841(B) prevails.
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       This Court notes that normally “the choice of offenses for which a criminal defendant

will be charged is within the discretion of the Commonwealth’s Attorney.” Kauffmann v.

Commonwealth, 8 Va. App. 400, 410, 382 S.E.2d 279, 284 (1989) (citing Davis v.

Commonwealth, 4 Va. App. 27, 30, 353 S.E.2d 905, 907 (1987)). Nonetheless, “[p]enal statutes

are to be strictly construed against the Commonwealth and in favor of the citizen’s liberty.”

Martin v. Commonwealth, 224 Va. 298, 300, 295 S.E.2d 890, 892 (1982) (citing Cox v.

Commonwealth, 220 Va. 22, 25, 255 S.E.2d 462, 464 (1979)). This principle is so fundamental

that the United States Supreme Court has stated that “[a defendant’s] case must be plainly and

unmistakably within the statute” before criminal liability can be imposed. United States v.

Lacher, 134 U.S. 624, 628 (1890).

       The applicability of Code § 46.2-856 to these facts is not “plain[] and unmistakabl[e].”

In its brief, the Commonwealth concedes that appellant was charged under Code § 46.2-856

because “Code § 46.2-841 carrie[s] a significantly lesser penalty than Code § 46.2-856, which is

a misdemeanor offense.” The Commonwealth suggests that appellant’s actions in this case were

more egregious than mere improper passing because he was driving on the emergency shoulder.

Even assuming that the Court agrees that appellant’s conduct was especially egregious, to hold

that appellant’s conduct falls under the language of Code § 46.2-856 would require the Court to

in essence force the proverbial square peg into the inconsequential round hole, and that we

decline to do.2

       Finally, the Court acknowledges that both parties engaged in extensive discussions in

their briefs regarding the 2010 Attorney General’s Opinion addressing the purpose of Code


       2
        The Commonwealth further contends that allowing appellant to escape liability under
Code § 46.2-856 “would thwart the very purpose of Code § 46.2-841” because “any vehicle, a
passenger car or large tractor trailer, could use the emergency shoulder to pass vehicles abreast”
on highways. Again, this is not an argument we will address in assessing the application of Code
§ 46.2-856 to appellant’s conduct.
                                                 -4-
§ 46.2-856, but we respectfully find that that particular pronouncement is not helpful to the

Court’s analysis here, nor is it binding precedent that we must defer to. Twietmeyer v. City of

Hampton, 255 Va. 387, 393, 497 S.E.2d 858, 861 (1998) (quoting City of Virginia Beach v.

Virginia Restaurant Assoc., 231 Va. 130, 135, 341 S.E.2d 198, 201 (1986)).

       For the reasons stated above, we reverse appellant’s conviction and dismiss the charge.

                                                                          Reversed and dismissed.




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