Primary And Secondary Traffic Violations

A special session of the Virginia legislature resulted in the passage of laws impacting when the police can pull over drivers in the Commonwealth.  The passage of House Bill 5058[1] no longer permits law enforcement officers to use certain infractions, while still illegal, as the primary reason for stopping drivers in the Commonwealth.  The new laws which downgraded some infractions from primary to secondary offenses went into effect on March 1, 2021. 

Primary vs. Secondary Offenses in Virginia

Primary Offenses – Offenses that permit a police officer to pull you over solely because you are committing that offense.  You do not need to be suspected of any other traffic infraction for a police officer to issue you a citation.  For example, speeding is a primary offense. A police officer can pull you over and issue you a ticket if you are speeding.  In addition, as of January 1, 2021, Virginia made holding a cell phone while driving a primary offense.[2] Even if stopped at a red light, this law permits a police officer to pull you over if you are holding your cell phone while operating the vehicle, whether talking on the phone or using GPS.

Secondary Offenses – Offenses that cannot by themselves result in law enforcement pulling you over.  A citation can only be issued for these offenses if you are stopped for another reason. Secondary offenses are still illegal, but law enforcement cannot pull you over solely for your violation of such an offense.  Examples of the recently downgraded offenses are discussed below.

The New Laws for 2021

The laws enacted or amended by House Bill 5058 downgraded the following offenses from primary to secondary offenses. While still unlawful, a law enforcement officer cannot pull you over based solely on the following violations:   

• Smoking in a vehicle with a minor present.  It is unlawful to smoke in a vehicle while a minor under the age of 15 is also present in the vehicle.
• Failing to have a light illuminating the license plate, brake lights, taillights, or a high mount stop light. Police can no longer pull you over if any of these lights are burned out or otherwise not functioning. However, it is still a primary offense to drive at night without headlights and you may be pulled over by police for failing to use your headlights at night.
• Operating a vehicle with defective and unsafe equipment, such as a defective and unsafe lighting device, warning device, signal device, or safety glass.
• Failing to have an exhaust system that prevents excessive or unusual levels of noise.  This applies not only to cars but also to mopeds, motorcycles, motorized scooters, and motorized skateboards.
• Window tinting past a certain threshold.
• Objects suspended in the vehicle that obstruct the driver’s view (such as hanging from the rear-view mirror).
• Having expired tags and stickers that are less than four months out of date. Having tags that are expired for four months or more is still a primary offense.
• For pedestrians, jaywalking or otherwise crossing highways in a dangerous manner such as by stepping into a highway where his or her presence would be obscured from drivers.  
• Regarding marijuana, police are prohibited from stopping, searching, or seizing a person, place, or thing on the basis of the smell of marijuana.  However, this does not apply in an airport.
• Learner’s Permit Violations. Violations of restrictions such as that a person with a learner’s permit can have only one passenger in the vehicle who is under the age of 21 or not drive between the hours of midnight and 4:00 a.m. can no longer be the basis of a traffic stop.

In addition, the new laws prohibit a city or county from enacting a law to make one of the above offenses a primary offense.  If the corresponding provision of the Virginia Code makes the violation a secondary offense, then a locality cannot enact its own law to increase the offense to a primary violation within its boundaries.

While a police officer cannot stop you for the above offenses, if you are pulled over for a primary offense, you could be issued a citation for violating a secondary offense. For example, if you are pulled over for speeding and your taillight is burned out, you could be issued a citation for speeding as well as for the tail light.

Importantly, the new laws not only reduce the above violations from primary to secondary offenses, but they also make it clear that any evidence discovered or obtained as a result of an impermissible stop is not admissible at any trial, hearing or other proceeding.  This is important because if a police officer pulls you over on account of one of the downgraded offenses and then finds evidence of another crime, the evidence for such other crime cannot be used against you because it was discovered as a result of the impermissible traffic stop.   

Cause for Change

As part of the 2020 special session, the General Assembly worked to address racial justice issues and police accountability throughout the Commonwealth. In an effort to reduce pretextual policing and racial profiling, the legislature targeted specific primary offenses that were often used by police to initiate traffic stops and converted them to secondary offenses.  This change resulted in police no longer being able to pull someone over on the basis of expired tags or the smell of marijuana in order to further investigate some other suspicious activity.

Supporters of the change are happy that the legislature made an initial step toward addressing violations that were used to disproportionately target people of color.[3]

Critics of the new laws are worried that converting the violations to secondary offenses will impact the safety of Virginia roads and create loopholes for bad actors.[4]

It is important that you consult an attorney if you are pulled over for one of the secondary offenses listed above.