Charged with Failure to Yield Right-of-Way (§ 46.2-863)?

The specific language of Virginia Code Section 46.2-863, Failure to Yield Right-of-Way, must be examined when defending against this charge.
If the location is not governed by a “Yield Right-of-Way” sign, then to achieve a conviction under this code section the Commonwealth must prove four specific elements:
1. The driver entered a “highway.”
2. The driver entered the highway “from a side road.”
3. The driver did not “bring his vehicle to a stop immediately before entering [the] highway.”
4. Traffic was approaching “within 500 feet” of the location where the driver was entering the highway.

Guilty of Charge?

The driver cannot be found guilty of the charge if any of the requirements is missing.
If the driver is not entering onto a highway or is approaching a highway sign, then a different code section may apply. For example, Virginia Code Section 46.2-864 governs reckless driving in a parking lot and Virginia Code Section 46.2-821 controls yielding when approaching a stop sign or yield sign on a highway.
If the driver stopped before proceeding, or if there is no witness to whether the defendant stopped before proceeding, then the evidence would be insufficient for a conviction.
It is also critical that the Commonwealth prove that the driver pulled out when another vehicle was within 500 feet. I recently argued a case in which the police officer demonstrated each of the first three requirements, but was unable to estimate the distance between the oncoming vehicle and the client’s vehicle at the time the client pulled onto the road. The judge dismissed the charge for lack of this essential evidence.