Does a Virginia emergency vehicle driver always have to use both lights and a siren to qualify for the exemption from traffic-law prosecution?

Plain-English summary

Senator Howell, as chair of the Virginia State Crime Commission, asked whether operators of emergency vehicles must engage both lights and sirens at all times to qualify for the criminal-prosecution exemption under § 46.2-920. The AG read the statute to say no.

Section 46.2-920(B) carves emergency vehicle drivers out of certain ordinary traffic-law liabilities (for example, exceeding the speed limit) when operating "under emergency conditions." That exemption applies "only when the operator of such vehicle displays a flashing, blinking, or alternating emergency light or lights ... and sounds a siren, exhaust whistle, or air horn ..., as may be reasonably necessary."

The interpretive crux is the placement of "as may be reasonably necessary." The AG concluded it modifies both the lights clause and the siren clause, not just the siren. Two reasons. First, the qualifier is set off by a comma, signaling it is not glued to the immediately preceding clause. Second, the statute's purpose is to protect emergency responders making fast decisions under stress. Reading the qualifier as covering both lights and siren respects that purpose. The legislature didn't want to make a paramedic responding at 3 a.m. on an empty road, or a deputy speeding away while on the radio, choose between flipping every switch and losing the exemption.

The AG was careful to note that prudence usually counsels activating lights or siren or both. The statute does not eliminate either as a routine matter. It just says neither is an absolute requirement when activation is not reasonably necessary. The judgment is left to the responder.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Section 46.2-920 has remained substantially in place, but local rules, agency policies, and case law may have refined what counts as "reasonably necessary." Anyone evaluating a current operational policy or a specific incident should check both the statute and any newer court decisions.

Common questions

Does this mean an officer can speed silently through an intersection?
Not exactly. The exemption applies only when the vehicle is being used in the performance of public services AND is being operated under emergency conditions AND the lights/siren are activated "as reasonably necessary." The officer must still be careful and the decision about lights/siren must be reasonable in context.

Who decides whether lights or siren were "reasonably necessary"?
A court reviewing the incident after the fact. The driver makes the first call, but if there is a collision or prosecution, a judge or jury can second-guess the reasonableness.

What about agency policies that require lights and siren?
Internal agency policy is separate from the statutory exemption. An officer who follows agency policy is more clearly within the safe harbor. An officer who departs from agency policy might still have the statutory exemption, but is also at risk of internal discipline.

Are insurance and self-insurance required?
Yes. The exemption is also conditioned on insurance or a certificate of self-insurance being in force and effect for the vehicle.

Background and statutory framework

The statute:

• § 46.2-920. Carves emergency vehicle drivers out of certain traffic-law obligations when operating under emergency conditions in the performance of public services.
• § 46.2-920(B). The exemption is conditioned on activation of "a flashing, blinking, or alternating emergency light or lights" and a siren/exhaust whistle/air horn "as may be reasonably necessary," plus insurance.

Construction principle: Plain language with the modifier "as may be reasonably necessary" applying to both clauses, supported by comma placement and statutory purpose.

The driver's judgment: The AG emphasized that the manifest purpose of the statute is not to second-guess in-the-moment decisions made under stress. The reasonable-necessity test gives drivers operational flexibility.

Citations

• Va. Code § 2.2-505
• Va. Code Ann. § 46.2-920, including subsection (B)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-106-Howell.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

November 15, 2010

The Honorable Janet D. Howell
Member, Senate of Virginia
Chair, Virginia State Crime Commission
Patrick Henry Building
1111 East Broad Street, Suite B036
Richmond, Virginia 23219

Dear Senator Howell:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether, to benefit from the exemption from criminal prosecution found in § 46.2-920(B), operators of emergency vehicles must engage both lights and sirens to qualify for the exemption.

Response

It is my opinion that the exemption from criminal prosecution found in § 46.2-920 does not require emergency vehicle operators to activate the vehicle's lights or siren when doing so is not reasonably necessary.

Applicable Law and Discussion

Section 46.2-920 provides that "[t]he driver of any emergency vehicle, when such vehicle is being used in the performance of public services, and when such vehicle is operated under emergency conditions may, without subjecting himself to criminal prosecution" engage in certain specified conduct that would otherwise expose a driver to prosecution, including, for example, disregarding speed limits. The exemption applies

only when the operator of such vehicle displays a flashing, blinking, or alternating emergency light or lights ... and sounds a siren, exhaust whistle, or air horn design to give automatically intermittent signals, as may be reasonably necessary, and only when there is in force and effect for such vehicle [insurance or a certificate of self-insurance.]

Statutes should be construed according to their plain language. First, the statute provides that the exemption from prosecution applies only if the vehicle displays lights "and" a siren, exhaust whistle or air horn. Therefore, the first part of subsection B contemplates that the vehicle would activate both lights and siren to benefit from the exemption. The statute, however, does not end there, because it further provides the limiting phrase "as may be reasonably necessary."

The key is whether the phrase "as may be reasonably necessary" modifies both the "lights" and the "siren" clause, or whether it modifies only the "siren" requirement. It is my conclusion that the phrase modifies both clauses. First, the clause "as may be reasonably necessary" is separated from the preceding clause by a comma, signaling that it is not incorporated into and, therefore, does not modify exclusively, the preceding "siren" clause. Second, this interpretation is consistent with the purpose of this statute, which is to shield from criminal prosecution persons who are providing a public service at great risk to themselves. The manifest purpose of the statute is not to second-guess a decision, made in high-stress conditions and in a wide range of circumstances, whether to activate the lights, or siren, or both. For example, an emergency vehicle driver may speed away to respond to an emergency, while speaking on the radio, and later turn on the emergency lights. Or the driver may conclude that emergency signals would be inappropriate because of the late hour and the absence of any traffic. Of course, in most circumstances, prudence dictates that either lights or a siren or both should be activated, but the statute does not make lights or sirens an absolute requirement for the exemption to apply. Rather, it affords discretion to persons responding to emergencies to determine whether sirens and lights are "reasonably necessary."

Conclusion

Accordingly, it is my opinion that the exemption from criminal prosecution found in § 46.2-920 does not require as a condition for its application that emergency vehicle operators have either lights or a siren to be activated when doing so is not reasonably necessary.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General