Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and
Keenan, JJ., and Poff, Senior Justice
CAROLYN T. CASH
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 950720 January 12, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF BUENA VISTA
Thomas H. Wood, Judge
On September 9, 1994, about 1:00 a.m., defendant Carolyn T.
Cash was arrested and charged with driving a vehicle in the City
of Buena Vista while under the influence of alcohol (DUI) in
violation of Code § 18.2-266. On the same day, defendant also
was charged in a warrant under Code § 18.2-268.2, a part of
Virginia's implied consent law, with refusing to submit to a
blood or breath test to determine the alcohol content of her
blood.
Subsequently, defendant was tried on both charges in the
local general district court. She was acquitted of DUI and
convicted of the refusal charge. She appealed the conviction to
the circuit court.
Pretrial, the circuit court granted the prosecutor's motion
to exclude certain evidence proffered by the defendant on the
reasonableness of her refusal to submit to the blood or breath
test. The prosecutor asked the court to prohibit, for example,
any evidence regarding defendant's sobriety at the time of arrest
and evidence of the outcome of the DUI charge on the ground that
such evidence is irrelevant to the charge of unreasonable refusal
to submit to such test.
Following a jury trial, at which only the arresting police
officer testified, defendant was found guilty of the refusal
charge. She was sentenced to revocation of her driving
privileges for one year, in accord with the verdict, and ordered
to pay court costs. The defendant appeals from the January 1995
judgment order, which has been suspended during the appeal.
The central question on appeal is whether the trial court
erred in granting the prosecutor's pretrial motion limiting the
evidence defendant could present to the jury.
Initially, the relevant law should be reviewed. Under the
implied consent law, any person who operates a motor vehicle upon
a highway in the Commonwealth is deemed, as a condition of such
operation, to have consented to have samples of blood, breath, or
both, taken for a chemical test to determine alcohol content of
the person's blood, if that person is arrested for DUI in
violation of the applicable statutes or of a similar local
ordinance. Code § 18.2-268.2(A).
A person so arrested must be advised by the arresting
officer of the implied consent condition and that "the
unreasonable refusal" to submit to a test constitutes grounds for
revocation of driving privileges. If the person refuses to
permit the testing, the person shall be taken before a
magistrate, who must advise the person again of the implied
consent law's requirements. If the person declares the refusal
in writing on a prescribed form, or refuses to so declare, then
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no samples shall be taken. Code § 18.2-268.3(A).
Upon such refusal, the magistrate shall certify to such fact
and that the person was advised of the law's requirements, and
shall charge the person with a violation of Code § 18.2-268.2 for
refusing the test. Code § 18.2-268.3(B).
At trial of the refusal charge, the declaration of refusal
or the magistrate's certificate is prima facie evidence that the
defendant refused to submit to the testing. "However, this shall
not prohibit the defendant from introducing on his behalf
evidence of the basis for his refusal. The court shall determine
the reasonableness of such refusal." Code § 18.2-268.3(E).
In construing the foregoing statutes and their predecessors,
this Court has decided that operation of a motor vehicle while
under the influence of alcohol or drugs may give rise to two
separate and distinct proceedings -- one a criminal action for
DUI and the other a civil, administrative proceeding on the
refusal charge. "Each action proceeds independently of the other
and the outcome of one is of no consequence to the other."
Deaner v. Commonwealth, 210 Va. 285, 289, 170 S.E.2d 199, 201
(1969). See Commonwealth v. Rafferty, 241 Va. 319, 321-23, 402
S.E.2d 17, 18-19 (1991). Cf. Code § 18.2-268.4 (if defendant
pleads guilty to DUI, court may dismiss refusal charge).
The consent to submit to a blood or breath test, granted
when a person operates a motor vehicle upon the highways, "is not
a qualified consent and it is not a conditional consent, and
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therefore there can be no qualified refusal or conditional
refusal to take the test." Deaner, 210 Va. at 292, 170 S.E.2d at
204. The mere fact that under the statute "an accused is
afforded an opportunity to establish the reasonableness of his
refusal does not operate to dilute the consent previously given,
or convert that consent into a qualified or conditional one."
Id. at 292-93, 170 S.E.2d at 204. Illustrative of a refusal that
would be deemed reasonable is when "a person's health would be
endangered by the withdrawal of blood." Id. at 293, 170 S.E.2d
at 204.
The Court has held that a person's unwillingness to take the
test without prior consultation with counsel does not constitute
a reasonable basis for the refusal. Coleman v. Commonwealth, 212
Va. 684, 685, 187 S.E.2d 172, 174 (1972); Deaner, 210 Va. at 293,
170 S.E.2d at 204. In another case, we held it was not
reasonable to refuse a blood analysis solely because counsel
advised the defendant against taking the test. Bailey v.
Commonwealth, 215 Va. 130, 131, 207 S.E.2d 828, 829 (1974).
There, the Court reiterated "there must be some reasonable
factual basis for the refusal, for example, endangerment of the
health of the accused by the withdrawal of blood." Id., 207
S.E.2d at 829.
Interpreting the implied consent law, our Court of Appeals
has held "that a driver's subjective belief that he was not under
the influence of alcohol is not a reasonable basis for refusing
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the test, nor is the fact that he could and did operate his
vehicle in a proficient manner. Thus, evidence of his state of
sobriety or proficiency in operating the vehicle is not
admissible in a case involving refusal to take a blood or breath
test." Quinn v. Commonwealth, 9 Va. App. 321, 324, 388 S.E.2d
268, 270 (1990).
Against this background, we examine defendant's proffer,
submitted to the trial court by an informal oral statement of
counsel, to determine whether any of the proffered evidence
should have been admitted.
According to counsel, defendant's evidence "would be" that
she and her husband "went to a place . . . in Buena Vista . . .
shortly before eleven o'clock that evening [and] that they'd had
nothing to drink before that." While at the "place," they
consumed "less than one beer . . . and at eleven-thirty [when]
the last call was made. . . , there was one pitcher served at the
table." Three persons "were at that table and each had less than
one mug." Two witnesses would testify that defendant "was not
under the influence, in any way."
When defendant and her husband left "the place" in a car,
"there was no erratic operation of the vehicle" by defendant.
The police stopped the vehicle on a city street although
defendant was "sober" and "she had done absolutely nothing to
justify the police to stop her." After the stop, the couple was
"treated abusively" by the arresting officer, and both were
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"ordered to take field sobriety tests." Defendant "did well" on
the test.
Following defendant's refusal to take a blood or breath
test, as the officer was taking defendant to a magistrate, she
"kept telling the officer" that she wished to consult counsel;
the officer made no response to the request. She told the
officer and the magistrate "she was concerned that she was being
framed," that any test "would be manipulated, and she wanted to
consult counsel to see what she could do to protect her interest
from being framed."
Defendant's perception she was being "framed" stemmed from a
separate criminal case in which she was not a party. She was
scheduled to testify later in the day of her arrest in a criminal
matter pending on a post-trial motion regarding juror misconduct.
Defendant "believed" the police "were trying to harass her and
frame her . . . as punishment for her having volunteered to the
defense in that case that she had information regarding the
misconduct and bias of the jury." Defendant, a school bus
driver, also proffered evidence of events relating to her job
occurring later in the day of her arrest, which she asserted
corroborated her "framing" charge.
Responding to defendant's "framing" allegation, the
prosecutor represented to the trial court he was prepared to
establish that the officers who were involved in defendant's
arrest had no knowledge at the time that defendant was to be a
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witness, or otherwise involved, in any court proceeding.
On appeal, defendant assigns error to the trial court's
granting of the prosecutor's pretrial motion prohibiting her
"from introducing evidence of her fear of being framed and
excluding any evidence of the reason the police stopped her." In
support of that assignment of error, defendant argues that the
"reasonable fear of entrapment by the police coupled with the
denial of an opportunity to consult counsel constitutes a factual
basis for a reasonable refusal to submit to a blood or breath
test." Additionally, she argues the Commonwealth had to prove
the reasonableness of the stop at the time of arrest for DUI to
support the charge of unreasonable refusal to submit to the
testing. We do not agree.
The precedent established in the cases we have just
discussed dictates the result in the present case. Manifestly,
the evidence about defendant's sobriety, about her driving
proficiency, and about her subjective belief that she was not
under the influence of alcohol, while admissible in the DUI
trial, was utterly inadmissible in the refusal trial.
Moreover, her desire to consult counsel "to see what she
could do to protect her interest from being framed" furnishes no
legal basis for refusal to submit to testing. As the trial judge
observed, this contention "just puts a different spin" on the
facts in Deaner and its progeny.
By operating a motor vehicle on the highways of the
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Commonwealth the night in question, defendant consented, as a
condition of that operation, to have tests made to determine the
alcohol content of her blood. The chemical analysis of one's
blood provides a scientifically accurate method of determining
whether a person is intoxicated; it protects one who may appear
to be intoxicated when, in fact, the individual is sober. Walton
v. City of Roanoke, 204 Va. 678, 683, 133 S.E.2d 315, 319 (1963).
The defendant may not unilaterally abrogate that agreement
or withdraw that consent by refusing the test unless there is a
reasonable basis for the refusal. A fear of being "framed" is
not such a basis; it is not "reasonable" in the sense that
evidence of endangerment of the health of the accused by
withdrawal of blood furnishes a "reasonable" basis for refusal.
That type of evidence should have been offered in the trial of
the DUI charge because it may relate to the question whether the
police officer's stop of the accused was lawful; certainly such
evidence is not probative in the trial of the refusal charge.
We note, however, that we are not presented in this case
with the effect on the refusal charge of a dismissal of the DUI
charge on constitutional grounds. There is nothing in this
record to suggest that the DUI charge was dismissed because
defendant's constitutional rights were violated, and we will not
presume such was the case in order to address that issue.
Consequently, we hold that the trial court correctly refused
to permit defendant to present the proffered evidence. And, we
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reject other errors assigned by defendant dealing with the
sufficiency of the evidence to prove the refusal charge and with
denial of an instruction she offered.
Thus, the judgment of conviction will be
Affirmed.
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