Hit and Run
Va. Code §§ 46.2-894 through 46.2-900 — three duties, and a passenger can be guilty too
1. The Three Duties — § 46.2-894
The section applies to the driver of any vehicle involved in an accident "in which a person is killed or injured or in which an ATTENDED vehicle or other ATTENDED property is damaged." Unattended property is § 46.2-896 instead — see § 3.
What the driver must do
- STOP immediately, as close to the scene as possible without obstructing traffic As provided in § 46.2-888.
- REPORT name, address, driver's license number and vehicle registration number FORTHWITH To the State Police or local law-enforcement agency, AND to the person struck and injured if that person appears 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.
- RENDER REASONABLE ASSISTANCE to any person injured "Including taking such injured person to a physician, surgeon, or hospital if it is apparent that medical treatment is necessary or is requested by the injured person."
What the Commonwealth must prove
O'Connell v. Commonwealth 48 Va. App. 719, 733, 634 S.E.2d 379, 386 (2006), Court of Appeals of Virginia, 2006
binding
"[B]ecause Code § 46.2-894 requires that he must satisfy EACH duty noted in this statute, as it is written in the conjunctive, the Commonwealth can establish appellant's guilt by proving appellant failed to perform ANY ONE of the duties under the statute." (Citing Varga v. Commonwealth, 260 Va. 547, 551-52, 536 S.E.2d 711, 714 (2000), on conjunctive statutes.)
THE STRUCTURAL HOLDING. You need not prove all three failures — one suffices. But identify which one in the warrant and prove it.
Herchenbach v. Commonwealth 185 Va. 217, 220, 38 S.E.2d 328, 329 (1946), Supreme Court of Virginia, 1946
binding
"The duty imposed upon the driver of a vehicle involved in an accident is not passive. It requires POSITIVE, AFFIRMATIVE ACTION — that is, to stop and give the aid and information specified."
The answer to "everyone there already knew who I was". Being identifiable is not compliance; the driver must actively give the information.
Tooke v. Commonwealth 47 Va. App. 759, 765-66, 627 S.E.2d 533, 536 (2006), Court of Appeals of Virginia, 2006
binding
"'It is the flight from the scene, and the failure to give the information required to the person in charge of the property damaged or succor to the injured which constitute the completed offense.'" (Quoting James v. Commonwealth, 178 Va. 28, 37, 16 S.E.2d 294, 300 (1941).)
Both halves are needed — flight AND a failed duty. Departure on its own is not the offence.
Smith v. Commonwealth 218 Va. 927, 930, 243 S.E.2d 463, 464 (1978), Supreme Court of Virginia, 1978
binding
REVERSED a conviction where the Commonwealth proved the accident and the departure but did not exclude the reasonable hypothesis that the driver had tried to leave his information — no evidence was presented on whether anyone connected to the damaged property was present to receive it.
⚠️ THE CASE THAT LOSES THIS CHARGE. Put on evidence of who was available to receive the information and that nothing was given. Proving he left is not proving he failed a duty.
2. Penalties
§ 46.2-894 — the driver
| Outcome of the accident | Class |
|---|---|
| Injury to or the death of any person | Class 5 felony |
| More than $1,000 of damage to property | Class 5 felony |
| Damage of $1,000 or less to property | Class 1 misdemeanor |
Note that the felony is reached by EITHER injury/death OR the property damage figure — a no-injury collision can still be a felony on value alone.
§ 46.2-900 — violations of §§ 46.2-895 through 46.2-897
| Outcome | Class |
|---|---|
| Accident results in injury to or the death of any person | Class 6 felony |
| Accident results only in damage to property | Class 1 misdemeanor |
| Property struck is UNATTENDED and damage is less than $250 | Class 4 misdemeanor |
§ 46.2-900 penalises the ACCOMPANYING-PERSON and unattended-property sections — NOT § 46.2-894, which carries its own penalty clause. A motor vehicle operator convicted of the Class 4 misdemeanor is assigned three demerit points.
3. Passengers and Unattended Property
Reading § 46.2-895
- It is triggered only by the DRIVER'S failure If the driver complied, the passenger has no duty.
- Age 16 or older, and actual knowledge of the accident
- 24 hours, not forthwith
- The duty is to ENSURE a report is made — not necessarily to make it personally
- The report must include the passenger's own name and address, plus what he knows of the § 46.2-894 information
Penalty comes from § 46.2-900 — a Class 6 felony where the accident caused injury or death.
§ 46.2-896 covers an accident damaging only UNATTENDED property: the driver must make a reasonable effort to find the owner or custodian and report the § 46.2-894 information. If the owner cannot be found, the driver "shall leave a note or other sufficient information including driver identification and contact information in a conspicuous place at the scene" AND report the accident IN WRITING WITHIN 24 HOURS to the State Police or local law-enforcement agency.
4. Defence Attacks & Responses
| Defense attack | Prosecution response |
|---|---|
| He stopped — that's all the statute requires. | It requires three things: stop, report the specified information, and render reasonable assistance. Identify which duty was breached and prove that one. |
| He was too injured to comply. | The section anticipates that and substitutes a duty rather than excusing it — report as soon as reasonably possible AND make a reasonable effort to locate the other party. Ask what he did once he was able. |
| It happened in a parking lot, not on a highway. | § 46.2-899 applies the article irrespective of whether the accident occurred on public streets or highways or on private property. |
| Nobody was hurt, so it's a misdemeanor. | Only if the damage was $1,000 or less. Above that figure § 46.2-894 is a Class 5 felony without any injury. |
| My client was only a passenger. | § 46.2-895 imposes an independent duty on every occupant 16 or older with knowledge of the accident, once the driver has failed to report — and § 46.2-900 makes it a Class 6 felony where there was injury or death. |
| The car he hit was parked and empty; he left a note. | § 46.2-896 requires BOTH the note in a conspicuous place AND a written report within 24 hours to law enforcement. A note alone does not discharge the duty. |
5. Before You Charge
- Which duty was breached — stop, report, or render assistance
- Attended or unattended property Attended → § 46.2-894. Unattended only → § 46.2-896.
- Injury or death established, or the damage figure proved against the $1,000 line
- For the driver: § 46.2-894's own penalty clause, not § 46.2-900
- If the driver was injured: what he did once reasonably able
- Passengers 16 or older identified, and their knowledge of the accident
- For a § 46.2-895 charge: the driver's failure established first
- 24-hour windows computed from the time of the accident
- Private property is no obstacle — § 46.2-899
6. Annotated Authority
Annotated authority — research layer, not printed on the PDF
James v. Commonwealth 178 Va. 28, 37, 16 S.E.2d 296, 300, Va., 1941
THE UNIT OF PROSECUTION, and it is the accident, not the victim. "The extent of the property damaged or THE NUMBER OF PEOPLE INJURED OR KILLED DOES NOT CONSTITUTE AN ELEMENT OF THE OFFENSE. It is the FLIGHT FROM THE SCENE, and the FAILURE TO GIVE THE INFORMATION required to the person in charge of the property damaged OR SUCCOR TO THE INJURED which constitute the completed offense."
Practical value: Charge ONE count per accident. Two injured people in one collision is one offence, and Tooke is where a second conviction was vacated for exactly that.
Herchenbach v. Commonwealth 185 Va. 217, 220, 38 S.E.2d 328, 329, Va., 1946
Two propositions, both still governing. First: "The duty imposed upon the driver of a vehicle involved in an accident IS NOT PASSIVE. IT REQUIRES POSITIVE, AFFIRMATIVE ACTION — that is, to stop and give the aid and information specified." Second, KNOWLEDGE IS AN ESSENTIAL ELEMENT: "it must be present in [the driver's] mind that THERE HAS BEEN AN INJURY; and then, WITH THAT IN MIND, HE MUST DELIBERATELY GO AWAY", so the evidence must prove "the driver [was] AWARE THAT HARM HAS BEEN DONE."
Practical value: The knowledge element is where these cases are actually fought, especially in no-contact collisions. Herchenbach construed a substantially similar PREDECESSOR to § 46.2-894, which is worth noting when the defence attacks its age. ⚠️ The knowledge passage was read in Tooke's DISSENT; the majority treated knowledge as an element too and simply found the evidence sufficient — so the split is about proof, not about whether knowledge is required.
Maroulis v. Elliott 207 Va. 503, 510, 151 S.E.2d 339, 344, Va., 1966
"[T]here can be MORE THAN ONE PROXIMATE CAUSE [of an incident] and LIABILITY ATTACHES TO EACH PERSON whose negligent act results in the victim's injury or death."
Practical value: For the manslaughter count that usually rides alongside. The victim's own negligence, or a third driver's, does not break the chain. ⚠️ A CIVIL case — cited by O'Connell for the causation principle, not a hit-and-run authority.
Clemmer v. Commonwealth 208 Va. 661, 666, 159 S.E.2d 664, 667, Va., 1968
"The Commonwealth's evidence MUST EXCLUDE EVERY REASONABLE HYPOTHESIS OF INNOCENCE, and UNTIL THAT IS DONE, THE ACCUSED IS NOT REQUIRED TO EXPLAIN OR OFFER EVIDENCE OF HIS INNOCENCE."
Practical value: The burden never shifts. A defendant who says nothing has conceded nothing — which is precisely how Smith was lost.
Delawder v. Commonwealth 214 Va. 55, 58, 196 S.E.2d 913, 915, Va., 1973
"An INTERVENING ACT WHICH IS REASONABLY FORESEEABLE CANNOT BE RELIED UPON as breaking the chain of causal connection between an original act of negligence and subsequent injury."
Practical value: The answer to "the other driver caused it". Foreseeable intervening acts do not break causation, and an intervening event set in motion by the defendant's own negligence does not exempt him at all. Again a CAUSATION authority carried for the companion manslaughter count.
Smith v. Commonwealth 218 Va. 927, 929-30, 243 S.E.2d 463, 464-65, Va., 1978
REVERSED AND THE WARRANT DISMISSED. Smith struck unattended property. He was "required NOT ONLY to make a reasonable effort to find the owner or a custodian, but, IF HE FAILED IN THAT EFFORT, HE WAS THEN REQUIRED TO LEAVE A NOTE." Although the evidence showed "a PROBABILITY OF GUILT, it is INSUFFICIENT to show beyond a reasonable doubt" that he violated the mandate.
Practical value: The unattended-property case, and the standard warning: proving the accident and the departure is not proving the offence. The two-stage duty is the useful detail — a reasonable effort to find the owner, and FAILING THAT, a note. ⚠️ CITATION TRAP: Smith is 218 Va. 927. PRITCHETT is 219 Va. 927 — same page, next volume, and a completely different case (statutory burglary, deadly weapon). Check the volume digit.
Archer v. Commonwealth 26 Va. App. 1, 11, 492 S.E.2d 826, 831, Va. Ct. App., 1997
The standard of review: the evidence is viewed "in the light most favorable to the Commonwealth, granting to it ALL REASONABLE INFERENCES FAIRLY DEDUCIBLE THEREFROM."
Practical value: Only helps where the Commonwealth prevailed below — and Smith shows it does not rescue a case with a gap in it.
Varga v. Commonwealth 260 Va. 547, 551-52, 536 S.E.2d 711, 714, Va., 2000
A statute framed in the CONJUNCTIVE — using "and" — requires that ALL CONDITIONS BE SATISFIED to comply with it.
Practical value: The interpretive step that makes O'Connell work. Because § 46.2-894 is conjunctive, the driver must satisfy EVERY duty, so the Commonwealth needs only to disprove ONE.
Tooke v. Commonwealth 47 Va. App. 759, 765-66, 627 S.E.2d 533, 536, Va. Ct. App., 2006
ONE CONVICTION VACATED. A single accident injuring two people supports only ONE violation of § 46.2-894: "the unit of prosecution . . . is a SINGLE ACCIDENT, REGARDLESS OF THE NUMBER OF PERSONS INJURED or the extent of the damage." The Attorney General CONCEDED that James was controlling. The remaining conviction was affirmed over a challenge that Tooke did not know an accident had occurred — this was a no-contact collision in which an oncoming vehicle left the road without any impact.
Practical value: Two charging lessons. Do not multiply counts by victim. And in a no-contact case, build the knowledge evidence deliberately — Tooke drew a dissent on exactly that point.
O'Connell v. Commonwealth 48 Va. App. 719, 733, 634 S.E.2d 379, 386, Va. Ct. App., 2006
Convictions AFFIRMED. "[B]ecause Code § 46.2-894 requires that he must satisfy EACH DUTY noted in this statute, AS IT IS WRITTEN IN THE CONJUNCTIVE, the Commonwealth can establish appellant's guilt BY PROVING APPELLANT FAILED TO PERFORM ANY ONE of the duties under the statute." Rejects the argument, built on Smith, that the Commonwealth must affirmatively disprove every duty.
Practical value: The most useful authority on the sheet. The Commonwealth picks the weakest duty and proves that one — it does not have to negate stop, information AND assistance. Read with Smith: O'Connell answers what Smith requires, it does not overrule it.