COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia
PHILIP BUTLER GROGGINS
OPINION BY
v. Record No. 1436-99-3 JUDGE RUDOLPH BUMGARDNER, III
NOVEMBER 28, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
Melissa W. Friedman (Law Offices of Anthony
F. Anderson, on briefs), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
A jury convicted Philip Butler Groggins of driving under
the influence of alcohol in violation of Code § 18.2-266. He
argues the trial court erred by limiting his toxicologist's
testimony and when instructing the jury. Finding no error, we
affirm.
Botetourt County Deputy C.L. Cook stopped the defendant for
driving 67 miles per hour in a 45 mile-per-hour zone. He
detected a strong odor of alcohol, and after conducting sobriety
tests and an alcosensor test, he arrested the defendant for
driving under the influence. The defendant refused to submit to
a blood or breath test.
At trial, the defendant testified that between 7:30 and
10:00 p.m. he consumed two one-and-a-half-ounce drinks of vodka
and a glass of wine with dinner. He presented a toxicologist,
Richard J. McGarry, who testified extensively on the absorption
and dissipation rates of alcohol in the blood stream. The trial
court permitted McGarry to answer a hypothetical question that,
given the defendant's size and alcohol consumption, the amount
of alcohol consumed would be insufficient to cause a person to
drive unsafely. However, the trial court did not permit the
toxicologist to state his opinion that defendant's blood alcohol
content would have been between .02% and .03%.
The defendant contends the trial court abused its
discretion in prohibiting McGarry from specifying the
defendant's blood alcohol content at the time of the offense.
He argues the statutory presumptions 1 applied to the
1
§ 18.2-269. Presumptions from alcohol
content of blood.
A. In any prosecution for a violation
of § 18.2-36.1 or § 18.2-266 (ii), or any
similar ordinance, the amount of alcohol in
the blood of the accused at the time of the
alleged offense as indicated by a chemical
analysis of a sample of the accused's blood
or breath to determine the alcohol content
of his blood in accordance with the
provisions of §§ 18.2-268.1 through
18.2-268.12 shall give rise to the following
rebuttable presumptions:
(1) If there was at that time 0.05
percent or less by weight by volume of
alcohol in the accused's blood or 0.05 grams
or less per 210 liters of the accused's
breath, it shall be presumed that the
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toxicologist's opinion, and the trial court erred in not
instructing on them. The trial court refused defense
Instruction Z, 2 which stated that a person with a blood alcohol
accused was not under the influence of
alcohol intoxicants at the time of the
alleged offense;
(2) If there was at that time in excess
of 0.05 percent but less than 0.08 percent
by weight by volume of alcohol in the
accused's blood or 0.05 grams but less than
0.08 grams per 210 liters of the accused's
breath, such facts shall not give rise to
any presumption that the accused was or was
not under the influence of alcohol
intoxicants at the time of the alleged
offense, but such facts may be considered
with other competent evidence in determining
the guilt or innocence of the accused; or
(3) If there was at that time 0.08
percent or more by weight by volume of
alcohol in the accused's blood or 0.08 grams
or more per 210 liters of the accused's
breath, it shall be presumed that the
accused was under the influence of alcohol
intoxicants at the time of the alleged
offense.
2
Instruction Z provided:
You have received evidence of the
amount of alcohol concentration of the
Defendant at the time he was operating his
automobile. If you believe the evidence
that has been introduced by the Defendant
that at the time he was operating his
automobile he had a blood alcohol
concentration of 0.05 or less, there is a
rebuttable presumption that the Defendant
was not under the influence of alcohol at
the time of the alleged offense. This
presumption may be rebutted by other
evidence.
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concentration of .05 or less is presumed not under the influence
of alcohol.
The statutory presumptions do not apply to this case.
Those presumptions apply only when a blood or breath test is
administered pursuant to Code §§ 18.2-268.1 through -268.12.
The statutory presumptions do not apply because the defendant
refused to take either the blood or breath test and no test was
given under the implied consent law. Code § 18.2-269. In Essex
v. Commonwealth, 228 Va. 273, 286, 322 S.E.2d 216, 223 (1984),
the trial court erred when it instructed on the statutory
presumptions. In that case, a test performed at a hospital, but
not pursuant to the implied consent law, did not raise the
presumptions. "Code § 18.2-269 expressly provides that the
presumptions it creates arise only when a blood-alcohol test is
conducted 'in accordance with the provisions of § 18.2-268 [now
§ 18.2-268.1 et seq.].'" Id. at 286, 322 S.E.2d at 223
(footnote omitted).
As in Essex, the evidence in this case did not permit the
giving of an instruction about the statutory presumptions. Even
an instruction that accurately states the law may not be given
if it is inapplicable to the facts of a given case. King v.
Commonwealth, 2 Va. App. 708, 711, 347 S.E.2d 530, 531 (1986).
The toxicologist's opinion about the defendant's blood alcohol
content was not based on the results of a properly administered
blood or breath test. Expert testimony is inadmissible "if it
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is founded on assumptions that have an insufficient factual
basis." Keesee v. Donigan, 259 Va. 157, 161, 524 S.E.2d 645,
648 (2000) (citations omitted). The trial court did not err in
refusing to admit the opinion or to give Instruction Z.
The defendant also contends the trial court erred in
granting Instruction No. 4, 3 which told the jury it could
consider the defendant's prior inconsistent statements as
substantive evidence. The Commonwealth introduced the
statements the defendant made when stopped by the deputy to show
he kept changing his story about whether he had been drinking
and the amount he had consumed.
A witness' prior inconsistent statement is admissible to
impeach trial testimony but is not admissible to prove the truth
of the matter asserted. If the prior statement is offered to
prove the truth of the statement uttered, it is hearsay. Hall
[Pugh] v. Commonwealth, 233 Va. 369, 374, 355 S.E.2d 591, 594-95
(1987). However, if the witness is a party, the prior
inconsistent statement is an admission and is admissible as an
exception to the hearsay rule. Land v. Commonwealth, 211 Va.
223, 229, 176 S.E.2d 586, 590-91 (1970).
3
Instruction 4 provided:
If you believe from the evidence that
the defendant previously made a statement
inconsistent with his testimony at this
trial, that previous statement may be
considered by you as proof that what the
defendant previously said was true.
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Satcher v. Commonwealth, 244 Va. 220, 421 S.E.2d 821
(1992), addressed the argument defendant raises. "Satcher
contends the trial court erred in refusing his Instruction J,
which would have limited the jury's consideration of Satcher's
pretrial 'I-am-being-framed-for-murder-or-rape' statement to its
bearing on his credibility. However, this limitation is
applicable only to 'a witness who is not a party to the case on
trial.'" Id. at 256, 421 S.E.2d at 843 (quoting Hall [Pugh],
233 Va. at 374, 355 S.E.2d at 594). Goins v. Commonwealth, 251
Va. 442, 470 S.E.2d 114 (1996), explains the reason behind the
exception to the hearsay rule. "In the case of a party
admission, the credibility of the extrajudicial declarant is not
an issue affecting the admissibility of the statement, because
the party need not cross-examine his own statement in order to
be in a position to deny, contradict, or explain the statement."
Id. at 461, 470 S.E.2d at 127 (citation omitted).
"Despite occasional misunderstandings on this point,
consideration by the trier of fact of a party's admissions is
not limited to the issue of the party's credibility. Party
admissions are admitted to prove the truth of the matter
asserted, and may be considered by the trier of fact for that
purpose." Charles E. Friend, The Law of Evidence in Virginia
§ 18-38, at 748 (5th ed. 1999) (emphasis in original).
Instruction 4 was a correct statement of law, and the trial
court did not err in giving it.
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For the foregoing reasons, 4 we affirm the conviction.
Affirmed.
4
On brief, the defendant also contends the trial court
erred in granting Instruction Nos. 8 and 9. We did not grant
the defendant an appeal on those instructions and will not
address them. Rule 5A:12; Perez v. Commonwealth, 25 Va. App.
137, 139 n.2, 486 S.E.2d 578, 579 n.2 (1997).
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