Virginia's Hit-and-Run requires you to report all vehicle crashes involving damage to property, injury to person, or both.

Can a Fender Bender Result in a Felony Conviction?

On February 27, 2020, the Supreme Court of Virginia issued an opinion interpreting Virginia Code § 46.2-894, commonly referred to as Virginia’s Hit-and-Run Statute (Butcher v. Commonwealth). This statute establishes the reporting requirements if you are in a vehicle crash involving damage to property, injury to person, or both.

To help you understand the daily significance of this code, here is some data on car accidents published by the Virginia Highway Safety Office:

In 2018 there were 131,848 car accidents throughout the Commonwealth

 

  • This is an average of 361 accidents per day or 1 crash every 3.9 minutes
  • 42,922 of these accidents involve injuries, which averages out to 117 per day
  • Car accidents injure 182 people every day

 

If you are convicted of violating this statute, and the accident involved either injury or death of any person, or more than $1,000 worth of damage to property, it is a Class 5 Felony. Conviction of a Class 5 Felony in Virginia carries a potential prison term of up to 10 years and/or a fine of up to $2,500.00. I’m sure none of us are interested in inadvertently earning ourselves a felony conviction. So, what did the Supreme Court determine a person needs to do to avoid such a conviction? They don’t know.

Why is it So Hard to Figure out What the Statute Requires?

            In attempting to interpret what the law requires, the Supreme Court found that this code section was so poorly written that “the attempt to untangle the language of code § 46.2-894 involves no easy task and results in no confident consensus.” This particular code section was recodified in 1989, and the old version of the code required each driver involved in an accident resulting in death, injury, or property damage to notify state or local law enforcement, “and, in addition, the person struck or injured … or to the driver or some other occupant of the vehicle collided with or to the custodian of other damaged property ….” (emphasis added). The driver was required to furnish identifying information so the police could investigate, and an adverse party knew whom to sue if necessary. Thus, under the old version, a driver needed to report the accident and his or her information to law enforcement AND (1) the pedestrian stuck, (2) the driver of the other vehicle, (3) another occupant of the vehicle, or (4) the owner of the damaged property. When the statute was recodified the General Assembly removed the words “and in addition” that followed law enforcement and the code now reads as follows:

report his name, address, driver's license number, and vehicle registration number forthwith to the State Police or local law-enforcement agency, to the person struck and injured if such person appears to be capable of understanding and retaining the information, or to the driver or some other occupant of the vehicle collided with or to the custodian of other damaged property.

 

The Supreme Court could not come to a consensus on whether the current version requires reporting the accident to BOTH law enforcement and the person injured or affected, or if reporting to EITHER will suffice.

How Is the Court Divided?

            The official opinion of the Court was that the best judicial practice was to decide the case on the narrowest grounds available and, thus, refused to reach the issue. In this particular case, the defendant failed to notify anyone; therefore, he was guilty regardless of which interpretation of the new statute applied. As such, the Court refused make a ruling on the issue of which interpretation was correct and vacated the portion of the Court of Appeals opinion that addressed the debate. The Supreme Court of Virginia is the highest court in the Commonwealth, and one of the oldest continuously active judicial bodies in the country. Considering this role, not all the Justices agreed that it was the most appropriate choice to refuse to interpret the statute. As a result, there were three separate concurring opinions written, each offering a different interpretation.

The Justices offer sound reasoning for each interpretation. The primary reasons for an interpretation that requires both are: 1) the old version of the code required both and 2) and the statute that governs hitting unattended property (i.e. a person’s mailbox) requires both (“as the Commonwealth points out, a disjunctive reading of Code §46.2-894 would place a lesser duty upon a driver who strikes and injures a pedestrian that it does upon a driver who strikes and damages a mailbox.”

The primary reasons for an interpretation that requires either are: 1) the General Assembly removed the language that made the requirements conjunctive (“and in addition”) and 2) it is reasonable that the General Assembly did not see the need to have law enforcement be involved in every single accident, even those involving no injury and minimal property damage. In the end, however, Justice McCullough expressed “regret that the Court is unable to provide an answer to that question and to say what the law is.”

Justice William Mims offered a unique perspective as the only current Supreme Court Justice to have previously served in the Virginia General Assembly. Justice Mims served a total of 14 years in the General Assembly (seven in the House of Delegates and seven in the Senate), prior to serving briefly as the State Attorney General, and in 2010 being appointed to the Supreme Court of Virginia. In his concurring opinion he stated that there was “a need for urgent legislative action to clarify the statute.” Further, Justice Mims agreed that it is likely that the General Assembly did not intend to make substantive changes when it recodified the former Code, but that “it is almost impossible for the average member of the General Assembly to discern which of the innumerable alterations included in a recodification bill are intended to be substantive changes without relying on the Commission to point them out in revisor’s notes in the Commission’s report on the bill.”

What Happens Next?

Officially, the Butcher v. Commonwealth opinion gave no guidance on how to interpret the hit-and-run statute. This means that currently whether any prosecutions under this code will be successful will be based on the interpretation of particular judge the case is tried before. This will not be solved until another case with different facts will make its way up to the Supreme Court or the General Assembly will change the language. The Virginia General Assembly reconvenes on April 22, 2020 and I’m sure the Justices of the Supreme Court of Virginia, as well as motorists across the Commonwealth, are hopeful that our legislators will clarify this statute and its requirements.

What Should You Do if You’re Involved in An Accident?

            Until the General Assembly clarifies the requirements, it is best to err on the side of caution and the Virginia Driver’s Manual, published by the Department of Motor Vehicles, recommends the following steps be taken:

  1. Stop at the scene of the crash or as close to the scene without blocking traffic.  If the vehicles are able to be moved and no one is injured, vehicles should be moved off the road.
  2. Give any help you can if someone is injured, however don’t move an injured person from a wrecked vehicle unless you have the necessary medical training or there is an immediate danger such as fire.
  3. Report the accident to local law enforcement.
  4. Exchange information with the other people involved making sure to get the following: name, address, driver’s license numbers, license plate numbers, insurance policy numbers for any other driver’s/vehicle owners, and the names and addresses of witnesses and anyone injured.
  5. If you hit an unattended vehicle or damage other unattended property, you must make a reasonable effort to locate the owner.  If you cannot locate anyone, leave a note that can be easily found at the scene with your contact information, and the date and time of the crash.  Report this to local police as well.

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