Criminal – Felony eluding conviction violated Double Jeopardy clause

Where the defendant was arrested and charged with felony eluding in two counties, following a continuous police chase through both jurisdictions, and he was then convicted of felony eluding in one of the counties, the second prosecution violated the Double Jeopardy clause.

Background

Barry Lee Derr was arrested and charged with felony eluding in both Bedford and Botetourt Counties. The Circuit Court of Bedford County accepted Derr’s Alford plea and convicted him of felony eluding in June 2024.

In August 2024, Derr moved the Circuit Court of Botetourt County to dismiss his indictment in that county for felony eluding. He contended that because of his conviction for felony eluding in Bedford, his prosecution in Botetourt violated the double jeopardy clauses of the U.S. and Virginia Constitutions. The trial court denied the motion to dismiss.

The trial court found that Derr’s flight from police had been “continuous from one jurisdiction to the other.” But it then concluded that based on “the specific person [endangered] it could be multiple charges” and that at trial the Commonwealth potentially could prove “separate victim[s] in Botetourt than there w[ere] in Bedford.” The trial court held that this possibility of proving multiple “victim[s]” would “prevent [it] from dismissing [the case] pretrial . . . on double jeopardy grounds.” The trial court convicted Derr of felony eluding.

Analysis

The double jeopardy clauses of the Virginia and United States Constitutions “guarantee[] protection against (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.”

Derr invokes the second circumstance. Derr argues that he “eluded law enforcement in a single, continuous chase which crossed county lines,” during which “[o]fficers never lost sight of him and never paused or terminated the chase,” and that therefore his “driving was a continuous act.” Accordingly, he contends that because he “engaged in a single, uninterrupted act,” the trial court “erred when it counted possible victims to separate that act into separate offenses.” This court agrees.

The trial court found that Derr’s flight from police had been “continuous from one jurisdiction to the other,” and this court agrees. However the trial court erred by interpreting Code § 46.2-817(B) to permit multiple prosecutions for a single act of felony eluding based on the endangerment of multiple specific persons.

By convicting Derr for felony eluding in Botetourt on the grounds that a different “person or persons [were] put in danger” in that county than in Bedford and that different people “[were] put in danger by the driving” in Botetourt versus in Bedford, the trial court necessarily concluded that different specific persons were imminently endangered in the two jurisdictions, and thus two convictions could arise from the same act without offending Derr’s protection against double jeopardy. This interpretation of the statute violated the proscription against “engraft[ing] an element to the offense” beyond the element of endangering “the public” through conduct merely “rais[ing] the specter of endangerment.”

Because the trial court erred in its interpretation of Code § 46.2-817(B), reading into the statute an element requiring imminent harm to an “actually imperiled” person, it erred in holding that Derr could be tried and convicted for felony eluding in Botetourt County despite his prior conviction for the same act in Bedford County. Derr’s felony eluding conviction in Botetourt County therefore violated his constitutional protection against a second prosecution for the same offense after conviction in Bedford County.

Reversed and dismissed.

Deer v. Commonwealth, Record No. 0783-25-3, May 5, 2026. CAV (unpublished opinion) (Malveaux). From the Circuit Court of Botetourt County (Branscom). Michelle C.F. Derrico (Copenhaver, Ellett & Derrico, on briefs), for appellant. Anna Murphy Hughes, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee. VLW 026-7-180. 10 pp.

Full-Text Opinion
VLW 026-7-180

• Deer v. Commonwealth