Sawyer v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Frank and Humphreys
Argued at Richmond, Virginia

JENNIFER LYNN SAWYER
OPINION BY
v. Record No. 1366-03-2 JUDGE LARRY G. ELDER
MAY 18, 2004
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge

Gregory R. Sheldon (Goodwin, Sutton & Duvall, P.L.C., on brief),
for appellant.

Margaret W. Reed, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.

Jennifer Sawyer (appellant) appeals from her bench trial conviction for driving under the

influence, third or subsequent offense, a felony in violation of Code §§ 18.2-266 and 18.2-270.1

On appeal, she contends the trial court erroneously admitted a prior uncounseled misdemeanor

conviction for driving under the influence where the record failed to show she neither served an

active period of incarceration nor received a suspended sentence. She also argues her conviction

is invalid because she proved she was physically unable to submit to a breath test and the

Commonwealth failed to offer her a blood test or prove such a test was unavailable.

We hold that appellant’s prior uncounseled conviction was entitled to a presumption of

regularity and, thus, constitutionality. Because appellant offered no rebuttal evidence, we adhere

to the presumption that the conviction did not result in an active or suspended jail sentence.

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Appellant also was convicted for refusing to take a blood or breath test in violation of
Code § 18.2-268.3. She does not challenge that conviction in this appeal.
Further, we hold the evidence supported the trial court’s conclusion that appellant failed to prove

she was physically unable to submit to a breath test. In the absence of such proof, appellant was

not entitled to a blood test. Thus, we affirm the conviction.

I.

BACKGROUND

At about 2:30 a.m. on September 30, 2002, Chesterfield Police Officer James Kuzicks

observed a vehicle driven by appellant making a right turn. Appellant’s turn was “wide”; she

pulled entirely into the lane for oncoming traffic and proceeded in that lane for about one-tenth

of a mile. Before encountering any oncoming cars in that lane, appellant moved her vehicle into

the proper lane of travel, but “the right front tires of [her] car went off the hard paved surface

in[to] the gravel, grassy area” before returning to the road. Officer Kuzicks stopped appellant’s

vehicle.

When Officer Kuzicks approached the car, he detected an odor of alcohol emanating

from both appellant and her vehicle. Her eyes were bloodshot, she sounded as if she was

slurring her words, and she admitted she had been drinking. Officer Kuzicks asked appellant to

perform some field sobriety tests and inquired whether she had “any ailments.” When appellant

said she had difficulty with her legs, Officer Kuzicks accepted her assertion and did not require

her to perform any sobriety tests that involved walking.

When appellant failed to complete various field sobriety tests to Officer Kuzicks’

satisfaction, he told appellant he suspected her of driving under the influence and offered her a

preliminary breath test. Appellant agreed to take the test. On appellant’s first attempt with the

preliminary breath test machine, appellant “said she had a problem,” but she provided a second

sample in which she “gave . . . plenty of air[] and [the machine] worked like it was supposed to.”

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 Officer Kuzicks then arrested appellant and took her to the police station. Kuzicks

advised appellant of the implied consent law, and she consented to the breath test. After the

required observation period, Officer Kuzicks attempted to administer the test repeatedly over a

period of three minutes, but appellant “was not able to give . . . a valid reading.” “[I]n the

middle of taking the first breath test,” appellant claimed for the first time that “she had problems

with her lungs.” Kuzicks recounted the attempts as follows:

When I explained the test, I [said], You need to form a tight seal
around the machine and blow hard enough where two small lines
will appear on the machine and . . . keep those two lines there for
approximately eight to ten seconds or until I say stop. When
[appellant] started blowing on the breath machine, she got the two
dashes up there, and then she stopped. She failed to keep them
there, and she said she couldn’t do it. And I informed her that she
was doing just fine.
. . . [Appellant] tried it again, and again she blew for a short
time and then stopped. And she did this throughout the duration of
the test which is three minutes . . . . Through the three minutes she
kept blowing but not giving me a strong enough sampling or
blowing continuously [enough] to give the machine a sampling it
could read at which time it read deficient sample.

Officer Kuzicks testified that, based on the training and three years of “experience [he

had] had running the machine,” he “believe[d] that [appellant] was not trying to give him a

proper breath.” Kuzicks told appellant he “believed she was not performing the test as she

could,” that “she was trying to beat the machine,” and that he was going to call a magistrate to

instruct her on the implied consent law.

The magistrate came to appellant and instructed her on the implied consent law. After an

additional twenty-minute observation period, Kuzicks again attempted to administer the test.

Appellant “went ahead and began blowing in the machine and then stopped. She did that for a

period of three minutes, which resulted again as another deficient sample.” Kuzicks testified

that, each time he attempted to administer the test, appellant “was doing exactly what [he] said

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until [he] said, You’re just about there. And every time [he] said, You’re just about there, just a

little bit longer, [appellant] would stop.”

Officer Kuzicks informed the magistrate of the results and indicated he was going to

charge appellant with refusing to take the breath test. The magistrate then completed a

“Declaration of Refusal” form on which he certified that appellant “refuses to permit the taking

of a breath and/or blood sample and further refuses to execute the declaration of refusal.”

Officer Kuzicks could not recall whether appellant requested a blood test, but said his

notes contained no indication that she made such a request. Kuzicks took the position that a

blood test “was not available in [appellant’s] case because she performed the preliminary breath

test like she should have.” When asked how the amount of air required for a preliminary breath

test “compare[s] to the amount [of air required by] the Intoxilyzer 5000,” Officer Kuzicks

responded, “It’s the exact same type of breath system. It takes deep lung air.”

The Commonwealth offered appellant’s DMV record as evidence of two prior

convictions for driving under the influence, a first offense conviction in 1993 and a second

offense conviction in 1996. Appellant objected to admission of the 1993 conviction. The DMV

record showed appellant was not represented by counsel in the proceedings that led to that

conviction. The record also showed that appellant’s license was suspended for twelve months as

a result of the conviction. It contained no information regarding whether appellant was

sentenced to a term of active or suspended incarceration. Appellant argued that, pursuant to the

Supreme Court’s ruling in Alabama v. Shelton, 535 U.S. 654, 122 S. Ct. 1764, 152 L. Ed. 2d 888

(2002), the Commonwealth had the burden to prove that she received neither active jail time nor

a suspended sentence for the 1993 conviction. The trial court admitted the record of conviction

over appellant’s objection.

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 Appellant testified in her own behalf. She admitted having five beers during the course

of the evening. She claimed she had suffered from chronic wheezing and shortness of breath

since she was a child and that she had seen her doctor for such symptoms a week before her

arrest, at which time he had given her an inhaler and medication. She said she “tried several

times . . . to take the test” and that she “just . . . could not do it” because of the shortness of

breath. “[She] could only blow to a certain point, and [she] could not blow any harder or longer

than that.” Appellant conceded she was able to give a breath sample when she was arrested in

both 1993 and 1996.

Appellant claimed she asked the police officer for a blood test but that he just kept telling

her “to blow into that machine.” When asked whether she told the magistrate she wanted a blood

test, she did not respond directly to the question and indicated merely that “[n]obody was

listening to me.”

Appellant argued in closing that because she proved she was unable to take the breath test

and the Commonwealth failed to prove a blood test was unavailable, the charges should be

dismissed. The trial court disagreed and found her guilty of driving under the influence, third

offense. It sentenced her to five years but suspended all but 90 days of the sentence for ten years

contingent upon certain conditions.

Appellant noted this appeal.

II.

ANALYSIS

A.

ADMISSIBILITY OF PRIOR UNCOUNSELED CONVICTION

Appellant contends that, in light of the Supreme Court’s holding in Alabama v. Shelton,

535 U.S. 654, 122 S. Ct. 1764, 152 L. Ed. 2d 888 (2002), the Commonwealth bore the burden of

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proving her uncounseled 1993 conviction did not result in the imposition of a term of active or

suspended incarceration. She contends that, because the Commonwealth produced no evidence

on this point, the admission of that conviction was error. We disagree. Although the holding in

Shelton overrules Virginia’s interpretation of federal constitutional law regarding the right to

counsel in misdemeanor cases, it does not require any change in Virginia law regarding the

allocation of the burden of production or proof in a case involving a collateral attack on a

misdemeanor conviction that appears valid on its face. Even after Shelton, appellant bore the

burden of producing evidence that her uncounseled misdemeanor DUI conviction resulted in the

imposition of a period of incarceration, whether active or suspended. Because appellant failed to

meet that burden, the admission of her uncounseled 1993 conviction into evidence for proof of

recidivism was not an abuse of discretion.

The United States Supreme Court has summarized the relevant history of the right to

counsel as follows:

In Gideon v. Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792,
[796,] 9 L. Ed. 2d 799 (1963), we held that the Sixth Amendment’s
guarantee of the right to state-appointed counsel, [already] firmly
established in federal-court proceedings . . . , applies to state
criminal prosecutions through the Fourteenth Amendment. We
clarified the scope of that right in Argersinger [v. Hamlin, 407 U.S.
25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972)], holding that an
indigent defendant must be offered counsel in any misdemeanor
case that “actually leads to imprisonment.” 407 U.S., at 33. Seven
terms later, [the holding in] Scott [v. Illinois, 440 U.S. 367, 99
S. Ct. 1158, 59 L. Ed. 2d 383 (1979)], confirmed Argersinger’s
“delimitation,” 440 U.S., at 373. Although the governing statute in
Scott authorized a jail sentence of up to one year, see id., at 368,
we held that the defendant had no right to state-appointed counsel
because the sole sentence actually imposed on him was a $50 fine,
id., at 373. “Even were the matter res nova,” we stated, “the
central premise of Argersinger -- that actual imprisonment is a
penalty different in kind from fines or the mere threat of
imprisonment -- is eminently sound and warrants adoption of
actual imprisonment as the line defining the constitutional right to
appointment of counsel” in nonfelony cases. Ibid.

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 Subsequent decisions have reiterated the Argersinger-Scott
“actual imprisonment” standard. See, e.g., . . . Nichols v. United
States, 511 U.S. 738, 746[, 114 S. Ct. 1921, 1927, 128 L. Ed. 2d
745] (1994) (constitutional line is “between criminal proceedings
that resulted in imprisonment, and those that did not”); id., at 750
(Souter, J., concurring in judgment) (“The Court in Scott, relying
on Argersinger[,] drew a bright line between imprisonment and
lesser criminal penalties.”) . . . . It is thus the controlling rule that
“absent a knowing and intelligent waiver, no person may be
imprisoned for any offense . . . unless he was represented by
counsel at his trial.” Argersinger, 407 U.S., at 37.

Shelton, 535 U.S. at 661-62, 122 S. Ct. at 1769-70.

In Nichols, the United States Supreme Court considered whether the Sixth Amendment

barred consideration of a defendant’s prior uncounseled misdemeanor DUI conviction, for which

he was fined but not incarcerated, in determining his sentence for a subsequent felony offense.

511 U.S. at 740, 114 S. Ct. at 1924. The Court concluded that “an uncounseled misdemeanor

conviction, valid under Scott because no prison term was imposed, is also valid when used to

enhance punishment at a subsequent conviction.” Id. at 748-49, 114 S. Ct. at 1928.

In Griswold v. Commonwealth, 252 Va. 113, 115-16, 472 S.E.2d 789, 790 (1996), the

Virginia Supreme Court interpreted Argersinger, Scott and Nichols to hold that if an uncounseled

misdemeanant is convicted and sentenced to “actual[] imprison[ment],” the conviction violates a

defendant’s rights under the Sixth and Fourteenth Amendments of the United States Constitution

and cannot serve as a predicate offense for sentence enhancement in recidivist proceedings. The

Court concluded that a conviction resulting in a 180-day sentence, with two days to serve and

178 days suspended, was “constitutionally infirm because of the two days [for] which Griswold

was actually imprisoned.” 252 Va. at 114-15, 472 S.E.2d at 790.

In Shelton, the United States Supreme Court addressed the conflict among various state

and federal courts regarding whether “appointment of counsel is a constitutional prerequisite to

imposition of a conditional or suspended prison sentence.” 535 U.S. at 660, 122 S. Ct. at 1768.

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In doing so, it cited, inter alia, the Virginia Supreme Court’s decision in Griswold as an example

of a decision rejecting the notion that counsel is required in a case resulting in a suspended

sentence. Id. at 660, 122 S. Ct. at 1768-69. It concluded that “a suspended sentence that may

‘end up in the actual deprivation of a person’s liberty’ may not be imposed unless the defendant

was accorded ‘the guiding hand of counsel’ in the prosecution for the crime charged.” Id. at 658,

122 S. Ct. at 1767 (quoting Argersinger, 407 U.S. at 40, 92 S. Ct. at 2014). It thus rejected the

Virginia Supreme Court’s conclusion in Griswold that an uncounseled conviction is invalid only

if an active period of incarceration is imposed.

Prior to the United States Supreme Court’s rejection of Griswold in Shelton, we cited

Griswold in Nicely v. Commonwealth, 25 Va. App. 579, 490 S.E.2d 281 (1997), for the “well

established [principle] that a prior uncounseled misdemeanor conviction that did not result in

actual incarceration may constitute proper evidence of recidivism.” Id. at 584, 490 S.E.2d at

282-83 (emphasis added). However, that “well established” principle, subsequently rejected in

Shelton, was not a key issue in Nicely, in which the record established only the fact of

defendant’s prior DUI conviction and did not indicate whether she received any sort of jail

sentence, active or suspended. Id. at 582, 490 S.E.2d at 282. The key question we addressed in

Nicely was how to “allocate[] the burden of proof in assessing compliance with [a] defendant’s

Sixth Amendment right to counsel,” id. at 584, 490 S.E.2d at 283, without regard for whether a

term of incarceration was active or suspended. We held in Nicely that, on collateral attack,

facially valid convictions are entitled to a “presumption of regularity.” Id.

“A silent record or mere naked assertion by an accused” that his
constitutional rights were violated is “insufficient” to rebut the
presumption of validity. Here, the transcript established [Nicely’s]
previous misdemeanor conviction, without suggestion of
imprisonment [or imposition of a suspended sentence], a
circumstance which did not implicate the Sixth Amendment right
to counsel in a collateral review of the conviction and entitled the

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 Commonwealth to the presumption of regularity without offending
due process.

Id. at 585, 490 S.E.2d at 283 (quoting James v. Commonwealth, 18 Va. App. 746, 752, 446

S.E.2d 900, 904 (1994)) (citations omitted).

Nicely involved a DMV transcript that “reflecte[d] neither the imposition of jail time[,

active or suspended,] nor the absence of counsel.” Id. Nicely’s transcript was silent on both

matters. Id. at 582, 490 S.E.2d at 282. Appellant’s DMV transcript, by contrast, reflected that

appellant’s 1993 conviction was uncounseled but contains no information regarding whether

appellant was sentenced to a fine or a period of active or suspended incarceration. Despite this

factual distinction, application to appellant’s case of the legal principles regarding burden of

proof set out in Nicely, with the modification required by Shelton, dictates the same outcome

here as in Nicely. Appellant’s transcript reflects the 1993 conviction was uncounseled, but it

does not indicate the imposition of a sentence that would have resulted in a violation of

appellant’s right to counsel under Shelton. Thus, the Commonwealth is entitled to a presumption

that the sentence did not constitute such a violation--i.e., that appellant received neither an active

nor a suspended jail sentence--and appellant bore the burden of proving otherwise. Because

appellant produced no evidence rebutting the presumption of regularity, we hold the trial court

did not abuse its discretion in admitting evidence of the uncounseled 1993 conviction.

B.

SUFFICIENCY OF EVIDENCE TO PROVE
PHYSICAL INABILITY TO TAKE BREATH TEST

When considering the sufficiency of the evidence on appeal in a criminal case, we view

the evidence in the light most favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218

S.E.2d 534, 537 (1975). Unless we conclude a witness’ testimony must be rejected as a matter

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of law based on its inherent incredibility, we must defer to the credibility determinations of “the

fact finder[,] who has the opportunity of seeing and hearing the witnesses.” Schneider v.

Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985). In its role of judging witness

credibility, the fact finder is entitled to disbelieve the self-serving testimony of the accused and

to conclude that the accused is lying to conceal his guilt. Speight v. Commonwealth, 4 Va. App.

83, 88, 354 S.E.2d 95, 98 (1987) (en banc); see also Tarpley v. Commonwealth, 261 Va. 251,

256-57, 542 S.E.2d 761, 764 (2001) (noting fact that accused lied provided basis for rejection of

accused’s testimony but was not substantive evidence of guilt).

Pursuant to Code § 18.2-268.2, Virginia’s implied consent law, “[a]ny person . . . who

operates a motor vehicle upon a highway . . . in this Commonwealth shall be deemed thereby, as

a condition of such operation, to have consented to have samples” of his blood or breath taken in

order to determine the alcohol or drug content of his blood, “if he is arrested for violation of

§ 18.2-266 or § 18.2-266.1 . . . within three hours of the alleged offense.” Code § 18.2-268.2(A).

The statute further provides that “[a]ny person so arrested . . . shall submit to a breath test” and

that “[i]f the breath test is unavailable or the person is physically unable to submit to the breath

test, a blood test shall be given. . . .” Code § 18.2-268.2(B).

If an accused driver claims he was physically unable to submit to the breath test, “the

burden . . . fall[s] on the accused to establish that fact. After an accused presents evidence of his

physical inability, the Commonwealth is entitled to present evidence in rebuttal, after which it

rests upon the trial court to determine whether the accused satisfied his or her burden.” Lamay v.

Commonwealth, 29 Va. App. 461, 473, 513 S.E.2d 411, 417 (1999), quoted with approval in

Hudson v. Commonwealth, 266 Va. 371, 381, 585 S.E.2d 583, 589 (2003). “A trial court’s

determination that the accused driver has carried his burden of proof as to physical inability is a

condition precedent to any finding that the Commonwealth was required to offer a blood test.”

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Hudson, 266 Va. at 381-82, 585 S.E.2d at 589. If the trial court finds the driver has not carried

his burden of proving physical inability, “the Commonwealth [is] relieved of any further

burden[,] and no blood test [is] required to be given even if requested by the defendant.” Id. at

382 n.7, 585 S.E.2d at 589 n.7.

Here, appellant testified that she had a chronic lung condition for which her doctor had

given her medication and an inhaler a week prior to her arrest for the instant offense and that this

condition rendered her physically unable to complete the breath test successfully. She provided

no medical records or testimony from any other witness to substantiate her claim. She conceded

that, despite her chronic condition, she had successfully completed a breath test on the occasions

that led to her 1993 and 1996 DUI convictions.

The Commonwealth offered rebuttal evidence from Officer Kuzicks. He testified that

when he first asked appellant if she had “any ailments,” she responded only that she had some

difficulties with her legs. Although appellant “said she had a problem” with the preliminary

breath test when Kuzicks first tried to administer it, on appellant’s second attempt, she “gave . . .

plenty of air[] and [the preliminary breath test machine] worked like it was supposed to.” Only

after Kuzicks transported appellant to the police station, obtained appellant’s consent for the

official breath test, observed the mandatory twenty-minute waiting period for that test, and began

to administer the test did appellant claim she had breathing difficulties. When asked how the

amount of air required for a preliminary breath test “compare[s] to the amount [of air required

by] the Intoxilyzer 5000,” Officer Kuzicks responded, “It’s the exact same type of breath system.

It takes deep lung air.”

Officer Kuzicks testified that, based on his training and three years of “experience . . .

running the machine,” he “believe[d] that [appellant] was not trying to give him a proper breath.”

Kuzicks so informed appellant and secured the presence of a magistrate, who instructed appellant

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on the implied consent law. After an additional twenty-minute observation period, Kuzicks

again attempted to administer the test. Appellant “went ahead and began blowing in the machine

and then stopped. She did that for a period of three minutes, which resulted again as another

deficient sample.” Kuzicks testified that, each time he attempted to administer the test, appellant

“was doing exactly what [he] said until [he] said, You’re just about there. And every time [he]

said, You’re just about there, just a little bit longer, [appellant] would stop.”

Based on this evidence, the trial court was entitled to reject as not credible appellant’s

testimony about her lung problem and to conclude she failed to meet her burden of proving she

was physically unable to take the breath test. Here, as in Hudson, “the evidence in the record is

sufficient to support [the trial court’s] conclusion.” Hudson, 266 Va. at 382, 585 S.E.2d at 589.

Further, because appellant failed to prove she was physically unable to take the test, the

Commonwealth was under no duty to prove it offered her a blood test or to provide the results of

such a test as a prerequisite to prosecution. Id. at 381-82 & n.7, 585 S.E.2d at 589 & n.7.

III.

For these reasons, we hold that appellant’s prior uncounseled conviction was entitled to a

presumption of regularity and, thus, constitutionality. Because appellant offered no rebuttal

evidence, we adhere to the presumption that the conviction did not result in an active or

suspended jail sentence. Further, we hold the evidence supported the trial court’s conclusion that

appellant failed to prove she was physically unable to submit to a breath test. In the absence of

such proof, appellant was not entitled to a blood test. Thus, we affirm the conviction.

Affirmed.

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