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PRESENT: ALL THE JUSTICES
WILLIAM C. HUDSON
OPINION BY
v.    Record No.  022703                                              JUSTICE G. STEVEN AGEE
                                                                      SEPTEMBER  12,  2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
T. J. Hauler, Judge
William C. Hudson  ("Hudson") appeals his conviction in the
Circuit Court of Chesterfield County for refusing to submit to a
breath test in violation of Code  §  18.2-268.3.    Prior to trial
Hudson moved to suppress "all physical and oral evidence arising
or resulting from" his initial detention which he alleged to be
unlawful.    The trial court denied the motion.
On appeal, Hudson assigns as error the trial court's denial
of the motion to suppress.    He also assigns error to the trial
court's findings that he was deemed to have given consent to a
breath test and that the Commonwealth met its burden of proving
that a blood test was unavailable.    We will affirm the judgment
of the trial court.
I.    FACTS AND PROCEEDINGS BELOW
On January  26,  2002, Officer Wills of the City of
Petersburg police department was off-duty, but in uniform
wearing his badge of authority and driving an unmarked police
car on Route  288 in Chesterfield County.    Officer Wills observed




Hudson driving in an "erratic" manner, activated his emergency
lights and caused Hudson to stop his vehicle.    Hudson attempted
to exit his vehicle, but Officer Wills commanded him to remain
in his car, at one point brandishing his service firearm.    He
did not ask Hudson for identification, interrogate Hudson, or
search either Hudson or his vehicle.    Officer Wills remained at
his police car behind Hudson's vehicle until Officer McCullough
of the Chesterfield County Police Department arrived.    At no
time did Officer Wills see Hudson driving within the city limits
of Petersburg and at no time was Officer Wills within one mile
of the Petersburg city limits during his observation and stop of
Hudson.
Officer McCullough was asked to respond to a Petersburg
police officer who "was attempting to make a traffic stop on a
vehicle in the county that was driving erratically and almost
ran him off the road."    Officer McCullough arrived on the scene
to find Officer Wills at his police cruiser which was parked
alongside the road, directly behind Hudson's car.    Officer Wills
told Officer McCullough that he "had to go off the road in order
to avoid getting rear-ended by  [Hudson's] vehicle."    Hudson was
sitting behind the steering wheel of his car which was parked
but running.    Officer McCullough asked Hudson to perform field
sobriety tests and then arrested him for driving under the
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influence.    Officer McCullough then transported Hudson to a
location where he would take a breath alcohol test.
At trial, Hudson testified that he attempted to take the
breath test several times, but the test operator repeatedly told
him that she was not receiving a valid sample.    Hudson testified
that, due to medical conditions involving his lungs, he was
unable to provide an appropriate sample.    Hudson also testified
that he requested a blood test and that his request was denied.
On rebuttal, Officer McCullough testified that he was in
the room during Hudson's attempts to take the breath test and
that from his experience, he could tell Hudson did not properly
seal his lips tightly around the tube.    Officer McCullough
stated he heard air escaping around the outside of the tube when
the machine was unable to get a proper sample for analysis.    He
also testified the test operator instructed Hudson "to put a
proper seal on the tube  .  .  . because all the air was escaping
around the tube because the seal was not proper."    The
Commonwealth introduced copies of the breath test results, one
indicating an "invalid" sample and one indicating a "deficient"
sample.    Officer McCullough also testified that Hudson never
communicated any medical problem or that he was unable to take
the breath test.
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Hudson was charged with an unreasonable refusal to submit
to a blood or breath test in violation of Code  §  18.2-268.3 and
convicted.    We granted Hudson an appeal.
II.    ANALYSIS
Hudson argues on appeal that the initial stop by Officer
Wills violated his Fourth Amendment rights because it was an
"unreasonable seizure."    His basis for this claim is that
Officer Wills "made no attempt to investigate any possible
criminal activity" while awaiting the arrival of Officer
McCullough.    Alternately, Hudson argues that he was not required
to take any test under Code  §  18.2-268.2(B) because Officer
Wills lacked authority to detain him under Code  §  19.2-250 or as
a private citizen.    Hudson's final assignment of error is that
the Commonwealth failed to meet its burden of proof as to the
unavailability of a blood test.    We disagree with Hudson's
arguments.
A.    Hudson's assertion that his initial detention by Officer
Wills violated the Fourth Amendment is barred by Rule  5:25.
On appeal, Hudson argues that the trial court erred in not
granting his motion to suppress claiming the initial stop by
Officer Wills was an illegal detention under the Fourth
Amendment.    As a consequence, Hudson contends his subsequent
arrest by Officer McCullough was tainted and thus invalid.
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Although conceding on brief that Officer Wills "had a
reasonable suspicion to briefly detain him and question him,"
Hudson argues that his Fourth Amendment rights were violated
because Officer Wills failed to immediately question and
investigate him while awaiting the arrival of Officer
McCullough.    In Hudson's view, the use of the least intrusive
means of temporary detention by Officer Wills caused the
otherwise valid stop  (from a Fourth Amendment perspective) to be
unreasonable and therefore taint the detention and subsequent
arrest.1
Hudson presents this argument for the first time on appeal.
Neither his motion to suppress nor his argument to the trial
court ever addressed the initial detention by Officer Wills as
unreasonable because Officer Wills failed to interrogate or
investigate Hudson before Officer McCullough arrived.    Hudson's
argument is thus barred from consideration on appeal under Rule
5:25.    See Buck v. Jordan,  256 Va.  535,  545-46,  508 S.E.2d  880,
1 Hudson concedes that if Officer Wills was deemed to be
acting as a private citizen, and not as a police officer when he
detained Hudson, then his Fourth Amendment argument is "wholly
inapplicable."    United States v. Jacobsen,  466 U.S.  109,  113
(1984).    We will assume, without deciding, that for purposes of
reviewing Hudson's Fourth Amendment claim Officer Wills was a
"state actor" under the color of his authority as a police
officer.    In that context, we note the trial court found Officer
Wills had "ample probable cause" to detain Hudson and the record
contains ample credible evidence to support that holding.
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885-86  (1998)  ("We have repeatedly refused to consider issues or
objections raised for the first time on appeal.").
B.    Officer Wills made a lawful citizen's arrest.
Hudson argues he was not required to take a breath or blood
test under Code  §  18.2-268.2(B) because Officer Wills unlawfully
arrested him.    As a consequence, Hudson contends the subsequent
arrest by Officer McCullough was tainted and also unlawful, so
the resulting conviction is void.
Hudson posits two grounds in support of this argument.
First, he avers that although Officer Wills lacked authority as
a police officer to detain or arrest him under Code  §  19.2-250,
the policeman nonetheless cannot be deemed to be a private
citizen making a citizen's arrest as at common law.    Hudson
argues this is so because Officer Wills acted under "color of
governmental authority" as a police officer.    Accordingly,
Hudson asserts that Officer Wills' extraterritorial detention of
Hudson was unlawful as an invalid citizen's arrest.
Alternatively, Hudson contends that if Officer Wills is
considered a private citizen, then he could have made a valid
citizen's arrest only if Hudson committed a felony.    As Hudson's
acts were a misdemeanor breach of the peace, and not a felony,
Hudson argues his "arrest" by Officer Wills was unlawful and
derivatively taints the subsequent arrest by Officer McCullough.
We disagree.
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1.    Officer Wills as a Private Citizen
Officer Wills lacked statutory authority, acting as a
police officer, to detain or arrest Hudson because Officer Wills
was outside the jurisdictional boundary limits set out in Code
§  19.2-250.2    Nonetheless, Hudson argues Officer Wills could not
make a valid "citizen's arrest" as a private citizen because he
acted under the "color of his badge of authority, in uniform,
displaying the badge,  [and] had blue lights on."3
We find no merit to Hudson's argument that the "under color
of office" doctrine applies to this case.    That doctrine
"prohibits a law enforcement officer from using the indicia of
his or her official position to collect evidence that a private
citizen would be unable  [to] gather."    West Virginia v. Gustke,
516 S.E.2d  283,  292  (W. Va.  1999).    It is clear from the record
2 Code  §  19.2-250(A) states in pertinent part:
Notwithstanding any other provision of this
article and except as provided in subsection
B hereof, the jurisdiction of the corporate
authorities of each town or city, in
criminal cases involving offenses against
the Commonwealth, shall extend within the
Commonwealth one mile beyond the corporate
limits of such town or city.
3 We assume that Hudson was "arrested" by Officer Wills as
at common law.    Under the common law, a "citizen's arrest" is
"defined as  [a]n arrest of a private person by another private
person on grounds that  .  .  . a public offense was committed in
the arrester's presence."    Black's Law Dictionary  104  (7th ed.
1999).
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Officer Wills made no effort to collect any evidence of any kind
from Hudson.    Accordingly, the "under color of office" doctrine
has no bearing on the case at bar and we reject Hudson's attempt
to extend the doctrine to include an arrest.
In Gustke, the Supreme Court of Appeals of West Virginia
examined a nearly identical case.    A city police officer had
completed his shift and was driving his marked police cruiser
outside the city limits on an interstate highway toward his
home.    Under the West Virginia statute,4  much akin to Virginia
Code  §  19.2-250, a local police officer lacks legal authority,
as a police officer, to effect an arrest outside the corporate
limits of his municipality.    The off-duty officer observed the
erratic operation of a vehicle on the interstate and engaged his
emergency lights and stopped the driver.    Gustke,  516 S.E.2d at
286.
In actions almost identical to those in the present case,
the off-duty officer instructed the driver to stay in his
vehicle and detained him until an authorized local officer
arrived to arrest him.    The off-duty officer did ask the driver
4 W. Va. Code  §  8-14-3 provides: "[A]ny member of the police
force or department of a municipality  .  .  . shall have all of
the powers, authority, rights and privileges within the
corporate limits of the municipality with regard to the arrest
of persons."
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for identification, but made no further investigation and did
not collect any evidence of any kind.    Id.
As in the case at bar, it was conceded in Gustke that the
initial officer lacked authority under the applicable state
statute to stop the driver, but the State contended he acted
lawfully to effect a citizen's arrest.    The driver asserted that
the off-duty officer could not make a citizen's arrest because
he acted under the "color of office" in that he was in uniform
with his badge of authority and used his emergency equipment.
Continuing, the driver argued that the officer, unlike a citizen
at common law, could not be viewed as acting as a private
citizen and therefore lacked the power to make a citizen's
arrest.    Id. at  289.
The Supreme Court of Appeals of West Virginia reviewed in
detail the efficacy of a citizen's arrest by a police officer
outside his territorial jurisdiction.    Citing case law from
eighteen states holding such a police officer had the authority
as a private citizen to make a citizen's arrest, the Court
concluded that "in accordance with these numerous authorities,
we hold that a law enforcement officer acting outside his or her
territorial jurisdiction, has the same authority to arrest as
does a private citizen and may make an extraterritorial arrest
under those circumstances in which a private citizen would be
authorized to make an arrest."    Id. at  291.
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Citing the Florida District Court of Appeals decision in
State v. Phoenix,  428 So.  2d  262  (Fl. Dist. Ct. App.  1982), the
Court held the "under color of office" doctrine did not apply
with respect to the officer in that case.
But this doctrine does not prevent officers from
making an otherwise valid citizen's arrest just
because they happen to be in uniform or otherwise
clothed with the indicia of their position when
making the arrest.    When officers outside their
jurisdiction have sufficient grounds to make a
valid citizen's arrest, the law should not
require them to discard the indicia of their
position before chasing and arresting a fleeing
felon.    Any suggestion that officers could not
make a valid citizen's arrest merely because they
happened to be in uniform or happened to be in a
police car at the time they inadvertently
witnessed a felony outside their jurisdiction
would be ridiculous.
Gustke,  516 S.E.2d at  293  (quoting State v. Phoenix,  428 So.  2d
at  266)  (citations omitted).5
We find the reasoning of the Supreme Court of Appeals of
West Virginia persuasive.    The "under color of office" doctrine
5 A similar approach is taken in the Restatement  (Second) of
Torts  §  121(a), as noted in comment d to that section:
The peace officer has all the privileges of
arrest which, by the rules stated in  §§  119 and
120, are conferred upon one not a peace officer.
In such a case, his privilege to arrest is not
dependent upon his being a peace officer; and it
is immaterial whether he purports to act in his
capacity as peace officer or as a private person
or whether he is or is not acting within the
territorial or other limits of his designation.
Restatement  (Second) of Torts  §  121 cmt. d  (1965)  (emphasis
added).
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simply has no application in this case because Officer Wills
made no attempt of any type to gather evidence against Hudson.
He merely detained him until a duly authorized police officer
arrived.    Assuming a private citizen can make a valid citizen's
arrest in these circumstances, we find it absurd to posit that a
law enforcement officer, solely because he happens to be in
uniform and in a police car, could not do so as well.
Accordingly, we conclude Officer Wills was acting as a
private citizen at the time he detained Hudson and possessed the
same authority to make a citizen's arrest as would any other
private citizen.    We now turn to the issue of whether a
citizen's arrest would be valid upon the record in this case.
2.    Citizen's Arrest for Breach of the Peace
Hudson contends that even if Officer Wills had the
authority as a private citizen to make a citizen's arrest, that
he was still not required to take a test under Code  §  18.2-
268.2(B).    Hudson's rationale is that he could not be the
subject of a lawful citizen's arrest as his actions were not a
felony.    He distinguishes our prior decision in Tharp v.
Commonwealth,  221 Va.  487,  270 S.E.2d  752  (1980), and the Court
of Appeals' decision in Hall v. Commonwealth,  12 Va. App.  559,
389 S.E.2d  921  (1990), aff'd en banc, Record Nos.  0963-88-1,
0964-88-1  (June  12,  1990), because those cases involved a police
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officer, acting outside of his territorial authority, who made a
citizen's arrest for a felony.    Hudson's argument fails because
a citizen's arrest can be made for a breach of the peace, as
occurred in this case, as well as a felony.
At common law, a private citizen may arrest another for a
breach of the peace committed in his presence.    See Gustke,  516
S.E.2d at  291-92; see also Carroll v. United States,  267 U.S.
132,  156-57  (1925)  (" 'In cases of misdemeanor, a peace officer
like a private person has at common law no power of arresting
without a warrant except when a breach of the peace has been
committed in his presence  .  .  .                                   .' "  (quoting  9 Halsbury's Laws
of England  612)); accord W. Page Keeton, ed., Prosser and Keeton
on the Law of Torts  §  26  (5th ed.  1984)  ("Broadly speaking,
either an officer or a private citizen may arrest without a
warrant to prevent a felony or a breach of the peace which is
being committed  .  .  . in his presence.")  (footnotes omitted).6
6                                                                    In Byrd v. Commonwealth,  158 Va.  897,  164 S.E.  400
(1932), we described the general parameters of acts constituting
a breach of the peace at common law and as recognized in
Virginia.
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Despite argument on brief that he could only be the subject of a
citizen's arrest for a felony, Hudson conceded at trial that
"any normal citizen can pull somebody over for breach of the
peace."
At trial, Officer McCullough described Officer Wills'
observation of Hudson's conduct as follows:
[Officer Wills] was almost run off the road.
He had to go off the road in order to avoid
getting rear-ended by this vehicle.
He said that he at that point realized that
it was a serious circumstance.    The vehicle was
weaving all over the road.    He thought it was
paramount that he stop the vehicle; therefore he
made a stop before I could get there.
"By 'peace' as used in the law in this
connection, is meant the tranquility enjoyed
by the citizens of a municipality or
community where good order reigns among its
members. It is the natural right of all
persons in political society, and any
intentional violation of that right is 'a
breach of the peace.' It is the offense of
disturbing the public peace, or a violation
of public order or public decorum. Actual
personal violence is not an essential
element in the offense."
Id.,  158 Va. at  902-03,  164 S.E. at  402  (quoting Davis
v. Burgess,  20 N.W.  540,  542  (Mich.  1884)).
See also  4 William Blackstone, Commentaries on the Laws of
England  1541 n.1  (William Draper Lewis ed.,  1898)  ("Offenses
against the public peace include all acts affecting the public
tranquility, such as assaults and batteries, riots, routs and
unlawful assemblies, forcible entry and detainer, etc."  (quoting
City of Corvallis v. Carlile,  10 Or.  139,  142  (1882)).
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Whether Officer Wills suspected Hudson was driving while
intoxicated or not, Hudson's dangerous conduct on a public
highway, in and of itself was a breach of the peace under any
definition of that concept.    Hudson's driving presented a clear
and present danger not only to Officer Wills, but to any person
or their property on or near the highway.    Hudson's actions in
forcing Wills off the road and driving so as to imperil others
clearly constituted a breach of the peace sufficient to justify
a citizen's arrest.    The similarity of Hudson's dangerous
driving to that of an intoxicated driver only makes the case
stronger.    See Gustke,  516 S.E.2d at  291-92  (citing multiple
cases applying the concept of breach of the peace).
The common law in Virginia permits a citizen to effect an
arrest for a breach of the peace occurring in his or her
presence.    Hudson's dangerous driving, in and of itself,
regardless whether he was under the influence of intoxicants,
constituted a breach of the peace committed in the presence of
Officer Wills.    Although Officer Wills was without authority as
a police officer, he was fully entitled, as a private citizen,
to effect a citizen's arrest of Hudson as at common law for the
breach of the peace committed in his presence.
Since the citizen's arrest by Officer Wills was lawful and
valid, the subsequent arrest by Officer McCullough was as well.
C. The accused bears the initial burden
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of proof under Code  §  18.2-268.2(B).
Hudson also asserts on appeal that the trial court erred in
convicting him of violating Code  §  18.2-268.3 because he
established he was unable to take the breath test and the
Commonwealth then failed to meet the burden of proof under Code
§  18.2-268.2(B) that a blood test was unavailable.    We disagree.
In its  1995 revision to Code  §  18.2-268.2, the General
Assembly eliminated the statutory provision which gave a person
arrested for driving while intoxicated a choice of either a
blood or breath test.    Acts,  1994 cc.  359 and  363.    In its
place, the General Assembly amended Code  §  18.2-268.2(B) which
now provides that a blood test "shall be given" only when the
breath test is "unavailable" or when the person arrested is
"physically unable to submit to the breath test."    Hudson
asserts, based on his trial testimony, that he was physically
unable to submit to the breath test and instead requested a
blood test.    He contends the trial court committed reversible
error by not then requiring the Commonwealth to prove that a
blood test was unavailable.
This Court has not addressed the issue raised by Hudson as
to the allocation of the burden of proof under Code  §  18.2-
268(B).    In Lamay v. Commonwealth,  29 Va. App.  461,  513 S.E.2d
411  (1999), the Court of Appeals considered which party bears
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the burden of proving inability to take the breath test and
reached this conclusion:
Because it is the accused driver whose physical
inability is at issue in such situations, logic
dictates that the burden should fall on the
accused to establish that fact.    After an accused
presents evidence of his physical inability, the
Commonwealth is entitled to present evidence in
rebuttal, after which it rests upon the trial
court to determine whether the accused satisfied
his or her burden.
Id. at  473,  513 S.E.2d at  417.    We find the Court of Appeals'
reasoning persuasive.
In a proceeding involving an unreasonable failure to
consent to a breath test under Code  §  18.2-268.2(B), the burden
rests upon the accused driver to produce evidence that he was
physically unable to take the test.    Once the accused driver
places that evidence before the trial court, the Commonwealth
may present evidence in rebuttal.    A trial court's determination
that the accused driver has carried his burden of proof as to
physical inability is a condition precedent to any finding that
the Commonwealth was required to offer a blood test.7
7 In his argument to this Court Hudson contends that "if the
defendant is able to demonstrate that he was physically unable
to submit to breath testing, the burden shifts to the
Commonwealth to prove that a blood test was not available."
This argument would be more persuasive with respect to the prior
version of the statute which allowed the accused to choose
between a breath or blood test.    Pursuant to current Code
§  18.2-268.2(B), once the trial court found that Hudson had not
carried his burden of proof, the Commonwealth was relieved of
any further burden and no blood test was required to be given
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Hudson contends that he met the burden of proving his
physical inability to take the breath test when he testified at
trial that he has a lung disease which caused him to "experience
severe difficulty breathing," and that he told the administering
officer of the disease and requested a blood test.    The
Commonwealth, however, called Officer McCullough to rebut
Hudson's testimony.    Officer McCullough testified that he was
present when the breath test was attempted and yet he did not
hear Hudson make any statements regarding a medical condition.
Furthermore, Officer McCullough, who testified he had years of
experience witnessing breathalyzer tests, asserted that he could
"constantly hear air escaping from around the tube" while Hudson
was taking the test, despite instructions from the certified
test operator to Hudson "to put a proper seal on the tube."
Officer McCullough stated, "You can  .  .  . tell when a tube is
sealed properly and they are actually attempting to blow into
the tube, but they are physically incapable of blowing into the
tube.    This was different."
After considering both Hudson's testimony and the
Commonwealth's rebuttal, the trial court obviously placed
greater weight on Officer McCullough's testimony, and the
evidence in the record is sufficient to support that conclusion.
even if requested by the defendant.    Had the trial court
determined Hudson had met his burden, the Commonwealth would
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Hudson therefore failed to carry his burden of proof that he was
unable to submit to the breath test and no blood test was
required to be offered.
III.    CONCLUSION
For the reasons set out above, we find no error in the
judgment of the trial court.    Hudson's Fourth Amendment argument
is barred by Rule  5:25.    Although he lacked statutory authority
as a police officer to detain Hudson, Officer Wills was lawfully
entitled to effect a citizen's arrest for the breach of the
peace by Hudson committed in his presence.    Finally, Hudson
failed to meet his burden of proof that he was physically unable
to take a breath test so no blood test was required.
The judgment of the trial court will, therefore, be
affirmed.
Affirmed.
have been required to produce the results of a blood test.
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