[Posted January 24, 2007] On Tuesday, January 23, the Court of Appeals reached a remarkable conclusion about “endangering a person” in a criminal appeal. The case is Phelps v. Commonwealth.

Perhaps there’s just something inherently suspicious about driving around at 1:00 am. I must admit, I am always horizontal at that hour, as I’m a morning person; the concept of staying up to the wee hours is as foreign to me as a picnic on the rings of Saturn. But not for Harlan Phelps, who was cheerfully tooling around in James City County west of Williamsburg at that ungodly hour on a February morning two years ago. He attracted the attention of a County police officer, originally for the most innocuous of reasons – his brake lights “flashed a couple of times.” With the officer now watching, Phelps then made a left turn from the center lane. That engendered a police pursuit.

Originally, the officer only activated his lights, but no siren. (He’s probably keeping quiet out of concern for the great Unconscious Majority, for which we thank him.) Phelps paid him no mind, so the officer activated his siren, hoping to get Phelps’s attention. This time, it worked; Phelps hit the gas and darted off down Chickahominy Road. The astonished officer took off after him, but didn’t bother checking his speedometer to clock Phelps; he was too busy ensuring that he kept his police car out of the ditch beside the narrow road.

Phelps, unfortunately, was not similarly safety conscious. At an area with a couple of curves in the road, he drove into the ditch, hit a culvert, and flipped his car. Remarkably, he was not killed; even more remarkably, he wriggled out of the wreckage and took off on foot. This time, the officer had little trouble taking Phelps into custody.

The officer charged him with felony eluding police, which requires proof not only that the defendant bolted, but that he did so in such a way as to “interfere with or endanger the operation of the law-enforcement vehicle or endanger a person.” It’s a Class 6 felony, so Phelps’s attorney had to think fast.

The defense at trial was that Phelps had not endangered anyone; the Commonwealth acknowledged that the pursuing officer was not endangered, but asserted that Phelps’s actions actually endangered himself, and since the statute only spoke of endangering “a person,” that was enough, since Phelps was, well, . . . a person. The trial court bit for that and convicted him.

On Tuesday, the Court of Appeals affirms, noting that when the General Assembly wants to require endangerment of “another person,” it knows good and well how to say so. The opinion cites a couple of related statutes that use the phrase “another person” (those punishing racing and aggressive driving), and finds that since this statute uses an indefinite article, it’s broad enough to encompass a situation in which a person endangers only himself.

My sense is that the legislature probably intended no such thing, but that’s the way the statute is written, and so the court’s reasoning is, on these words, sound. Somehow I doubt there will be a groundswell of support among the reckless driving lobby for the General Assembly to change this statute to limit its application, so those attorneys defending felony eluding cases will have a bigger hurdle once the police establish even a reasonably dangerous course of driving — even if it’s one in the morning and there’s no one else around.