ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Friday, May 10, 1996 TAG: 9605100073
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
DATELINE: FINCASTLE
SOURCE: MATT CHITTUM STAFF WRITER NOTE: Below
Jim Phillips lost round two Thursday, but Iron Gate's one-man police force is determined to shake a reckless driving conviction and $25 fine resulting from a not-so-hot pursuit last March.
After Botetourt Circuit Judge George E. Honts III upheld Phillips' conviction and fine, Phillips said he may take his case to the state Court of Appeals.
His attorney said the case may set a precedent on how police officers are tried on traffic charges related to emergency pursuits.
Meanwhile, his chances of ever enforcing Iron Gate's iron-clad 35 mph speed limit are growing ever dim.
Phillips was first convicted March 20 after Dennis Wayne Dew said that the lone officer in Iron Gate nearly hit him head-on while chasing someone. A week later, Iron Gate Town Council voted to place Phillips on administrative leave.
To testify on his behalf, Phillips brought in an assistant attorney general who taught him about the legalities of passing on highways with double-yellow lines. But she may have done Phillips more harm than good.
Lee Turlington testified that she told Phillips there were no legal exemptions for emergency vehicles to cross a double-yellow line to pass. Drivers of emergency vehicles are subject to the same penalties as anyone else. They might do it anyway, though, in "extraordinary circumstances" with "extreme prudence.''
Commonwealth's Attorney Joel Branscom asked Turlington what she meant by extraordinary circumstances.
"Oh, like some kids burning in a fire, and you're the only one nearby," she said.
Phillips was chasing a car he believed to be driven by a suspended driver, he testified. He also said he saw an unrestrained child in the front seat.
Phillips said he waited four minutes to confirm that the car was owned by a woman whose license was suspended before setting out after the car.
Stuck in slow traffic, Phillips took 13 minutes to cover seven miles. He said he finally got a chance to pass when a tractor-trailer in front of him pulled over a little bit. That's when Phillips nearly hit Dew, headed home on a narrow, shoulderless stretch of U.S. 220, according to Dew.
Branscom argued the whole chase was ill-advised because Phillips got such a late start and the crimes involved weren't worth the safety risk anyway.
Judge Honts agreed Phillips had abused the use of an emergency vehicle.
But Phillips' lawyer, former Botetourt County Commonwealth's Attorney Rob Hagan, said the case could set a legal precedent.
In incidents like this one, he said, police decisions should not be judged by "reasonable man" standard of care, but by a "reasonable officer" standard. In other words, police, who are trained expert drivers, should be given some latitude.
He could cite only civil precedents, but said Phillips' appeal might set one for criminal cases.
Phillips said he was disappointed.
For the moment, he's still on administrative leave. Iron Gate's council will likely take up his case at its next regular meeting on May23.
"Council has feelings about this whole thing," said Mayor Otis Payne.
They first began hearing of Phillips constabulary antics last summer, when he pulled over an ambulance on the way to a Salem hospital with a possible heart attack victim.
"We feel like whatever action we take, we're well within our rights," Payne said. "He's scaring the daylights out of too many people. We're just tired of getting the calls."
LENGTH: Medium: 71 lines ILLUSTRATION: PHOTO: Jim Phillips\Says he may continue fightby CNB