Pearson v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Clements and Felton
Argued at Chesapeake, Virginia

DONALD E. PEARSON
OPINION BY
v. Record No. 0225-03-1 JUDGE JEAN HARRISON CLEMENTS
JUNE 8, 2004
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge

(Patrick D. Kelley, on brief), for appellant. Appellant submitting on
brief.

Kathleen B. Martin, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.

Donald E. Pearson was convicted in a bench trial of driving under the influence of alcohol,

second offense, in violation of Code § 18.2-266. On appeal, he contends the trial court erred in

admitting a certificate of blood analysis because, in having him take a blood test rather than a breath

test, the arresting officer failed to comply with Virginia’s implied consent law. Finding no error, we

affirm Pearson’s conviction.

I. BACKGROUND

In accordance with familiar principles of appellate review, we “state the evidence presented

at trial in the light most favorable to the Commonwealth, the prevailing party below.” Johnson v.

Commonwealth, 259 Va. 654, 662, 529 S.E.2d 769, 773 (2000). As relevant to this appeal, the

evidence proved that, on August 17, 2002, at approximately 8:07 p.m., Sergeant H.A. Nealy of the

Virginia State Police saw Pearson drive into a Mobile gas station in York County. Nealy

approached Pearson and observed that Pearson’s speech was slightly slurred and that there was a
strong odor of alcohol coming from Pearson’s person after he exited his vehicle. Pearson’s eyes

appeared “glassy, watery and bloodshot,” and his complexion was flushed. Pearson swayed slightly

and was argumentative and “unfocused” as he talked to Nealy. Pearson admitted to the officer that

he had consumed three beers over the past two hours at Pizzeria Uno. He also told Nealy he had

eaten some chili earlier in the day at Chili’s, which had given him indigestion. After Pearson failed

several field sobriety tests, Nealy arrested him at 8:29 p.m. for driving under the influence of

alcohol. Nealy advised Pearson of his rights under Virginia’s implied consent law. Nealy then

transported Pearson to the Virginia Peninsula Regional Jail, where he intended to administer a

breath alcohol test to him.

In preparation for administering the breath alcohol test, Nealy, “a licensed breath alcohol

operator” of the Intoxilyzer 5000 breath analysis machine, inspected Pearson’s mouth and, finding

no foreign objects, began the requisite twenty-minute observation period at 9:02 p.m. After twenty

minutes passed, Nealy, following standard procedure, started the Intoxilyzer 5000 and, after

determining the machine was working properly, entered the necessary identifying information

obtained from Pearson. At 9:36 p.m., immediately before administering the breath test to Pearson,

Nealy asked Pearson if he had burped or belched, and Pearson responded affirmatively. Nealy

explained at trial that, although he had not seen or heard Pearson burp during the observation period,

he was required, before obtaining a breath sample from him, to ask whether he had burped, because

not all burps are susceptible to observation by the operator.

Nealy then began a new twenty-minute observation period. He told Pearson to tell him

immediately if he burped again, explaining that burping “could affect his results and create an

invalid sample.” At 9:37 p.m., Pearson informed Nealy that he had burped again. Nealy began

another twenty-minute observation period and once more told Pearson to let him know if he burped

again. At 9:38 p.m., Pearson informed Nealy that he had burped again and told the officer that he

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was “having a tough time” with the chili he had eaten earlier. At trial, Nealy explained that,

although he did not observe Pearson burp or belch, he relied upon Pearson’s voluntary admissions

that he had done so. No evidence was presented to show that Nealy believed Pearson’s actions were

deliberate attempts to impede the administration of the test or that Pearson was otherwise

uncooperative.

Seeking advisement as to Pearson’s status under the implied consent law, Nealy took

Pearson to see a magistrate. After a brief discussion with the magistrate, Nealy took Pearson to

Williamsburg Community Hospital for a blood test. A registered nurse took samples of Pearson’s

blood at approximately 10:38 p.m. According to the Department of Criminal Justice Services,

Division of Forensic Science certificate of analysis introduced by the Commonwealth at trial, an

analysis of the blood drawn from Pearson revealed he had a blood alcohol content of 0.16%.

Pearson argued at trial that the results of the blood test were inadmissible because the

Commonwealth failed to show he was physically unable to submit to a breath test and, thus,

improperly denied him of his right to a breath test under Code § 18.2-268.2(B). The

Commonwealth argued Pearson’s digestive problems physically precluded him from taking the

breath test.

Following argument, the trial court overruled Pearson’s objection and admitted the

certificate of blood analysis. In announcing its ruling, the court observed that the record was

“replete with” evidence of Pearson’s ongoing “trouble with [his] digestive system” that resulted

from the chili he had eaten “much earlier” that day. Noting that Pearson “may never be through

with belching or burping,” the trial court found that, in taking Pearson to the magistrate and then for

a blood test, Nealy “did all that was reasonably left to him to do.” Accordingly, the court concluded

that, because Pearson “was physically unable to submit to the breath test because he continued to

burp,” the blood test was properly given pursuant to Code § 18.2-268.2(B).

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 The trial court subsequently convicted Pearson of driving under the influence of alcohol,

second offense, in violation of Code § 18.2-266. This appeal followed.

II. ANALYSIS

On appeal, Pearson contends the trial court erred in admitting the results of the blood test

into evidence because the Commonwealth failed to prove he was physically unable to take the

breath test. Evidence that he “merely burped three times in the space of three minutes,” Pearson

maintains, is insufficient to prove his inability to take the breath test. Absent such proof, Pearson

argues, Sergeant Nealy’s decision to forgo administration of the breath test in favor of the blood test

constituted a violation of Code § 18.2-268.2(B)’s requirement that a person arrested for driving

while intoxicated be given a breath test unless he is physically unable to take such a test. Therefore,

Pearson concludes, the certificate of analysis based on the blood test was inadmissible. We

disagree.

“The admissibility of evidence is within the broad discretion of the trial court, and a ruling

will not be disturbed on appeal in the absence of an abuse of discretion.” Blain v. Commonwealth,

7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). “By definition, when the trial court makes an

error of law, an abuse of discretion occurs.” Bass v. Commonwealth, 31 Va. App. 373, 382, 523

S.E.2d 534, 539 (2000). Application of the provisions of Code § 18.2-268.2(B) involves a mixed

question of law and fact. See Bennett v. Commonwealth, 33 Va. App. 335, 342-43, 533 S.E.2d 22,

26 (2000) (en banc). Accordingly, in determining whether the trial court abused its discretion in

this case, we will review the court’s application of the law de novo while giving deference to its

findings of fact. See Daily Press v. City of Newport News, 265 Va. 304, 309, 576 S.E.2d 430,

432-33 (2003) (“On appeal, we review a mixed question of law and fact de novo by giving

deference to the trial court’s factual findings in order to review the court’s application of the law to

those facts.”).

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 Here, the trial court convicted Pearson of driving under the influence of alcohol, second

offense, in violation of Code § 18.2-266. The trial court based its conviction, in part, on the results

of the blood test it admitted into evidence, which showed that Pearson had a blood alcohol content

of 0.16%. See Code § 18.2-269(A)(3) (providing that “a chemical analysis of a sample of the

accused’s blood” establishing the accused had a blood alcohol content of 0.08% or more gave rise

to a presumption “that the accused was under the influence of alcohol intoxicants at the time of the

alleged offense”). The blood test was administered to Pearson only after Sergeant Nealy, upon

consulting with the magistrate, decided Pearson was physically unable to submit to a breath test

because of his repeated burping.

Code § 18.2-268.2, Virginia’s implied consent statute, provides, in relevant part, that any

person who operates a motor vehicle on the highways of the Commonwealth shall be deemed “to

have consented to have samples of his blood, breath, or both blood and breath taken for a chemical

test to determine the alcohol . . . content of his blood, if he is arrested for violation of [Code]

§ 18.2-266 . . . within three hours of the alleged offense.” Code § 18.2-268.2(A). Code

§ 18.2-268.2(B) provides, in pertinent part, that “[a]ny person so arrested . . . shall submit to a

breath test. If the breath test is unavailable or the person is physically unable to submit to the breath

test, a blood test shall be given.” Hence, “[t]he arresting officer provides a blood test only when the

[accused] is physically unable to perform a breath test” or no breath test is available. Oliver v.

Commonwealth, 40 Va. App. 20, 23, 577 S.E.2d 514, 515-16 (2003).

In this case, neither party contends the breath test was unavailable. The dispositive issue

before us, then, is whether Sergeant Nealy properly determined, that Pearson was physically

unable to submit to the breath test because of his repeated burping. Applying the relevant

provisions of Code § 18.2-268.2(B) outlined above to the evidence before us, we hold that he did.

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 Code § 18.2-268.11 provides that

[t]he steps set forth in §§ 18.2-268.2 through 18.2-268.9 relating to
taking, handling, identifying and disposing of blood or breath
samples are procedural and not substantive. Substantial
compliance shall be sufficient. Failure to comply with any steps or
portions thereof . . . shall not of itself be grounds for finding the
defendant not guilty, but shall go to the weight of the evidence and
shall be considered with all the evidence in the case; however, the
defendant shall have the right to introduce evidence on his own
behalf to show noncompliance with the aforesaid procedures or
any part thereof, and that as a result his rights were prejudiced.

The Commonwealth bears the burden of proving substantial compliance with the statutes’

requirements. Snider v. Commonwealth, 26 Va. App. 729, 732, 496 S.E.2d 665, 666 (1998).

Code § 18.2-268.9 provides that, “[t]o be capable of being considered valid as evidence

in a prosecution under § 18.2-266 . . . , chemical analysis of a person’s breath shall be performed

. . . in accordance with methods approved by the Department of Criminal Justice Services,

Division of Forensic Science.” As applicable to this case, the breath test methods approved by

the Department of Criminal Justice Services, Division of Forensic Science are set forth in 6 VAC

20-190-110, which provides, in pertinent part, as follows:

The division approves the following breath test methods
and procedures:

* * * * * * *

2. The person to be tested shall be observed for at least 20
minutes prior to collection of the breath specimen, during which
period the person must not have ingested fluids, regurgitated,
vomited, eaten, or smoked. Should any of these actions occur, an
additional 20-minute observation period must be performed.

(Emphasis added.) Plainly, the purpose of this regulation is to assure the testee has not engaged,

either voluntarily or involuntarily, in activities before a breath test that could taint or otherwise

affect the testee’s breath sample. In other words, the regulation is intended to assure the

accuracy of the test result, an objective as important to the accused as to the Commonwealth.

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 “Regurgitation” is defined as “an act of flowing, pouring, or gushing back or out again;

specif : reversal of the natural direction in which the current or contents flow through a tube or

cavity of the body.” Webster’s Third New International Dictionary 1914 (1993). The terms

“belch” and “burp,” which are synonymous, mean “to expel gas suddenly through the mouth.”

Id. at 199, 300. Clearly, a burp or belch is a form of regurgitation in which air or other gas that

has entered the stomach through the mouth is expelled from the stomach back into and through

the mouth. As Nealy, a licensed conductor of the breath test, told Pearson after he indicated he

had burped, the gas regurgitated from the stomach by burping “could affect [the] results [of the

breath test] and create an invalid sample.” Thus, it is apparent from his testimony that Nealy

understood through his training that a breath test could be properly administered only if the testee

had not burped or belched during the twenty-minute period immediately before a breath sample is

given. Indeed, Nealy explained at trial that, although he had not seen or heard Pearson burp during

the observation period, he was required, before obtaining a breath sample from him, to ask whether

he had burped. He additionally admonished Pearson, upon starting the second and third observation

periods, to immediately inform him if he burped again so that he could restart the required

observation period without delay.

In Schmerber v. California, 384 U.S. 757, 770 (1966), the Supreme Court noted that “the

percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body

functions to eliminate it from the system.” See also Davis v. Commonwealth, 8 Va. App. 291, 296,

381 S.E.2d 11, 14 (1989) (observing that “blood alcohol concentration, as measured by a chemical

test, is a function of many factors including . . . the length of time between drinking and

measurement”). Hence, there was a need for prompt testing in this case because the percentage of

alcohol in Pearson’s blood was diminishing after Sergeant Nealy observed Pearson driving at

approximately 8:07 p.m. See id. at 300, 381 S.E.2d at 16 (noting that, because the blood alcohol

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measurement obtained from a prescribed chemical test is presumed to accurately reflect the

accused’s blood alcohol concentration at the time of the alleged offense, the “blood alcohol

absorption and elimination rates makes it clear the timing of the chemical test is critical in terms of

the accuracy of the test to reflect the prior blood alcohol concentration at the time of driving”); see

also Romo v. Anchorage, 697 P.2d 1065, 1071 (Alaska Ct. App. 1985) (recognizing the need for

prompt administration of the breath test in order “to preserve accurate evidence” of intoxication,

because the alcohol concentration in an arrestee’s blood dissipates with the passage of time).

When approached by Nealy, Pearson admitted that he had consumed three beers over the

past two hours at a restaurant. He also told Nealy that he had eaten some chili earlier in the day at a

different restaurant and that the chili had given him indigestion. After arresting Pearson for driving

under the influence of alcohol, Nealy transported him to the jail for administration of a breath test.

At the jail, Nealy began the requisite twenty-minute observation period at 9:02 p.m. At 9:36 p.m.,

Nealy asked Pearson if he had burped or belched, and Pearson told him that he had. It is unknown

from the evidence, whether Pearson burped several times during that period or only once. Nealy

then began a new twenty-minute observation period. At 9:37 p.m., Pearson indicated that he had

burped again. Nealy began another twenty-minute observation period. At 9:38 p.m., Pearson

informed Nealy that he had burped again and told the officer that he was “having a tough time” with

the chili he had eaten earlier.

In light of the fact that Pearson was repeatedly burping because of chili he had consumed at

least three and a half hours earlier, we find it was reasonable for Nealy to conclude that Pearson’s

digestive problem would not end in time to obtain a valid breath sample and accurate test result

before the blood alcohol evidence diminished. We conclude, therefore, that Nealy acted properly in

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determining that Pearson was “physically unable to submit to the breath test,” within the meaning of

Code § 18.2-268.2(B), and in taking him to the hospital for a blood test.1

Pearson argues the Commonwealth must show that he was “passed out or severely injured”

to prove he was “physically unable to submit to the breath test.” He cites no authority for this

argument, and we know of no authority that limits such proof to these two circumstances. Here,

although not “passed out or severely injured,” Pearson’s physical condition precluded him from

submitting a valid, untainted breath sample for analysis.

For these reasons, we hold the trial court did not abuse its discretion in admitting the

certificate of blood analysis into evidence. Accordingly, we affirm Pearson’s conviction.

Affirmed.

1
Our holding—that Sergeant Nealy substantially complied with Code § 18.2-268.2(B)
because Pearson’s repeated burping met the statute’s “physical inability” requirement
necessitating the use of a blood test—is limited to the circumstances and legal context of this
case. In other words, our disposition of this case is not a holding that, as a matter of law, the act
of burping, be it observed, admitted, or subsequently asserted, constitutes a condition that
necessarily renders one “physically unable” to submit to a breath test in all cases.
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