Almost a dozen years ago, I had a criminal case where the defendant was stopped in the rain on suspicion of drunk driving, sat in the police car for a while, then ran off and got charged with escape under Va. Code 18.2-479.
I wrote a brief that said there was no escape because the accused was not in custody, and Judge Flannagan agreed.
Earlier this week, interpreting the similar language of Va. Code 18.2-478 in Coles v. Com., the Virginia Court of Appeals in an opinion by Judge Annunziata held that the defendant could not be guilty of escape because he was not in lawful custody when no criminal process had issued.
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