Opinion
Record No. 0006-93-3
Decided: July 12, 1994
FROM THE CIRCUIT COURT OF CRAIG COUNTY, Duncan M. Byrd, Jr, Judge
Reversed and dismissed.
(Clifton R. Dalton, pro se, on brief).
Robert B. Condon, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Coleman, Koontz, and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Clifton R. Dalton was convicted in a jury trial of improperly stopping his vehicle in such a manner as to impede or render dangerous use of the highway by others in violation of Code Sec. 46.2-288. The jury recommended a fine of one dollar ($1.00), which the trial court imposed. On review, we find the evidence insufficient to prove that Dalton stopped his vehicle in a manner as to impede or render dangerous use of the highway by others. Accordingly, we reverse the judgment that Dalton committed a traffic infraction in violation of Code Sec. 46.2-288.
Code Sec. 46.2-288 provides: "No person shall stop a vehicle in such a manner as to impede or render dangerous the use of the highway by others, except in the case of an emergency, an accident, or a mechanical breakdown." (Emphasis added.)
"[T]he prohibition [under Code Sec. 46.2-288] is not absolute. It is not made unlawful to stop unless such action impedes traffic or renders use of the highway dangerous." Davis, Adm'x v. Scarborough, 199 Va. 100, 105, 97 S.E.2d 731, 735 (1957). "Whether [the appellant] impeded or rendered dangerous the use of the highway by [others is] . . . a factual question . . . properly referred to the jury for decision." Elliott v. Lewis, Adm'x, 207 Va. 361, 366, 150 S.E.2d 129, 132 (1966). The jury's verdict will be sustained unless plainly wrong or without evidence to support it. Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 219-20 (1992).
Code Sec. 46.2-288 proscribes stopping a vehicle in two situations: first, stopping in a manner that impedes traffic, or second, stopping in a manner that renders dangerous use of the highway by others. Code Sec. 46.2-288. The evidence is insufficient to prove that Dalton stopped in a manner that violated either prohibition under the statute.
The record includes a videotape that Dalton made during his stops. The videotape shows the physical characteristics and sight distance of the roadway in front of and behind Dalton's vehicle, the nature of the road surface and surrounding area, and the fact that no traffic was visible or discernible in either direction.
On April 24, 1992, at approximately 7:50 p.m., Dalton was operating his automobile that he had equipped with a video camera. He followed two police patrol vehicles. After following them on a residential street to videotape the officers who had parked their vehicles, Dalton stopped his vehicle three times in rapid succession, with each stop lasting only a few seconds, on the surface of an unmarked side street (Marshall Avenue) in the New Castle community, where the residential speed limit was 25 m.p.h. At the time, it was raining hard, and the road surface was wet.
First, the evidence fails to support the finding that Dalton impeded traffic. In order to sustain a conviction under Code Sec. 46.2-288 for impeding traffic, a defendant must, in fact, impede traffic. Scarborough, 199 Va. at 105, 97 S.E.2d at 735. Here, no car was in sight during the brief stops on the isolated side street, except for the parked police vehicles. No traffic was present that Dalton could have impeded when he stopped briefly.
Second, the evidence fails to support the finding that Dalton rendered use of the highway dangerous. To prove a violation under Code Sec. 46.2-288 that Dalton rendered use of the highway dangerous by others, the Commonwealth is not required to show the actual presence of other vehicles in the vicinity at the time. Indeed, when a driver stops a vehicle over the crest of a hill or around a curve without knowing whether a vehicle might be approaching, then such stopping renders use of the highway dangerous to others, regardless of whether other vehicles are, in fact, on the highway. Therefore, if Dalton stopped his vehicle at a location or in a manner, considering such factors as road, weather, and light conditions, so as to render dangerous use of the highway by those who might have been using the highway at that location, then the evidence is sufficient to prove a traffic infraction under Code Sec. 46.2-288 for rendering use of the highway dangerous.
Officer King testified that when the appellant stopped his vehicle, he was not "looking down the roadway or behind . . . to see if anything else was coming." Dalton stopped late on a cloudy afternoon when the road surface was wet from a recent rain. The evidence is not sufficient, however, to prove that Dalton stopped in a manner that rendered use of the highway dangerous by others. While this statutory prohibition does not require that the stop actually place another in danger, the manner of stopping, either by its location, duration, or circumstances, must create a situation that renders use of the highway dangerous by others. Dalton stopped momentarily in rapid succession on a flat residential side street where no traffic was present and which had sufficient sight distance that it could not reasonably be considered to have created a danger in a 25 m.p.h. residential zone. Had a vehicle approached, Dalton's stopped vehicle would not have caused a hazard for an approaching vehicle. Dalton, by his brief stops at this location where the roadway can be observed in both directions, and where the speed limit is 25 m.p.h., did not stop in a manner that did or could create a dangerous situation for other users of the highway.
Accordingly, we reverse and vacate Dalton's conviction under Code Sec. 46.2-288. Therefore, we need not address the issues concerning the admissibility of evidence and the jury instructions.
Reversed and dismissed.