A Virginia legislator pulled over on suspicion of intoxicated driving Sunday in Christiansburg left with a warning, not a charge — and could not have been cited even if the police officer wanted to because of a provision of the Virginia Constitution.

Del. Chris Hurst, D-Montgomery, was stopped about 2 a.m. and blew a .085%, a result above the .08% legal limit for blood alcohol, in a field breath test that would not have been admissible in court, according to an account Christiansburg officials released late Tuesday. Hurst passed other sobriety tests and was released.

Speaking Tuesday evening outside a General Assembly committee meeting, Hurst said that he was released with an instruction to let his passenger drive, and that the officer said the couple should go to Walmart and stay there before hitting the road again.

“You know, it is what it is,” Hurst said. “I didn’t get arrested. I didn’t get cited. But yes, I did have a traffic stop and did submit to a breathalyzer test.”

The town’s account said that Hurst was stopped by police Lt. Stephen Swecker while heading west on the U.S. 460 Bypass between the downtown Christiansburg and Peppers Ferry Road exits.

Swecker, whose anti-intoxicated driving work has been recognized by Mothers Against Drunk Driving at least four times, saw Hurst’s vehicle swerve across the right side fog-line several times and observed the vehicle briefly exceed the speed limit.

“When the officer approached the driver, he noticed that the driver’s eyes were red and he smelled the odor of alcohol coming from within the vehicle,” the town’s statement said.

Hurst soon was asked to step out of his vehicle and perform three sobriety tests and a breath test. While the breath test showed a higher-than-allowed blood-alcohol concentration, it was near enough that the officer determined it might well be within the legal limit by the time Hurst was taken to the magistrate’s office and given a formal test that would be admissible in court, the town statement said.

“Because of this, along with Hurst’s overall performance during the field sobriety tests and coupled with the fact that Hurst had a sober companion in the vehicle who could drive him home, the officer released Hurst without charging him,” the town statement said.

Hurst said that after he was released, he and his girlfriend went to Walmart for “a period of time like the officer instructed, until he thought that we would both, you know, be, you know, even more able to get home safely.”

Hurst said that in his encounter with the Christiansburg officer, he did not identify himself as a legislator or claim any special privilege. He noted that he does not have General Assembly license plates as some legislators do.

The town statement said that the officer knew who Hurst was but that neither he nor Hurst mentioned it.

Still, the traffic stop was the subject of courthouse chatter on Tuesday. Montgomery County Commonwealth’s Attorney Mary Pettitt said that after she heard about it, she looked up the immunity from arrest that Virginia’s constitution grants to legislators when the General Assembly is in session.

Article IV of the constitution says that during a session, legislators may not be arrested for anything short of “treason, felony, or breach of peace.”

“I think it would have applied in this instance if things had risen to the level where an officer wanted to charge him,” Pettitt said.

Intoxicated driving is a misdemeanor in Virginia until a third offense. While it could be argued to be a breach of peace, that phrase typically is defined as covering violent offenses, Pettitt said.

The town’s statement said that Swecker knew that legislators were immune from many arrests because it is taught in the police academy.

VIDEO IS COURTESY OF THE CHRISTIANSBURG POLICE DEPARTMENT

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