Lamay v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Lemons and Senior Judge Hodges
Argued at Alexandria, Virginia

GEORGE LAMAY
OPINION BY
v. Record No. 2965-97-4 JUDGE WILLIAM H. HODGES
APRIL 13, 1999
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N.A. Kendrick, Judge

(Judy A. Dugger, on briefs), for appellant.
Appellant submitting on briefs.

Richard Barton Campbell, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.

George Lamay (appellant) appeals his conviction for driving

while intoxicated (DUI). He contends the trial court erred when

it refused to allow testimony at his DUI trial relating to his

alleged physical inability to take a breath test following his

DUI arrest. Appellant argues that, under the DUI statutes, his

inability to take a breath test required the Commonwealth to

provide him a blood test; absent a blood alcohol test, appellant

asserts that the trial court erred in refusing to dismiss the

case. Appellant also contends that, due to numerous

contradictions and discrepancies in the evidence, the evidence

was insufficient to prove his guilt. For the reasons that

follow, we reverse appellant's conviction and remand.
 I.

Arlington County Police Officer George Lichtenberg arrested

appellant on June 7, 1997, and charged him with driving under

the influence of alcohol. At the police station, Lichtenberg

advised appellant of the implied consent law and about the

breath test. The police never obtained breath test results.

The police also charged appellant with refusing to take a breath

test in violation of Code § 18.2-268.3.

II.

DUI Trial in District Court

On August 7, 1997, the Arlington County General District

Court convicted appellant of DUI and sentenced him to sixty days

in jail, with fifty-four days suspended. In addition, the court

fined him $1,500, with $1,000 suspended, and ordered him to be

of good behavior and attend and successfully complete an alcohol

safety program. The court suspended his driver's license for

one year and granted him a restricted license, allowing him to

travel to and from work during working hours.

Refusal Trial in District Court

On September 11, 1997, the Arlington County General

District Court tried appellant on the charge of refusing to

submit to a breath test. See Code § 18.2-268.3. The district

court dismissed the charge.

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 DUI Trial De Novo in Circuit Court

At appellant's October 30, 1997 trial de novo before the

circuit court on the DUI charge, Officer Lichtenberg testified

about the events surrounding the stop, arrest and attempt to

administer a breath test to appellant. During

cross-examination, defense counsel asked Lichtenberg what

happened after he advised appellant of the implied consent law.

The Commonwealth objected on the basis of relevance. Defense

counsel argued, "I would ask that I be allowed to ask what

happened at the booking," but the trial judge sustained the

objection.

After the Commonwealth rested, appellant testified. When

defense counsel asked appellant about "blow[ing] into the

[breathalyzer] machine," the Commonwealth objected on the basis

of relevance. Appellant contended that evidence surrounding the

administration of the breath test was necessary so the trial

court could determine "whether or not provisions of 18.2-268

have been violated." The following exchange ensued:

[DEFENSE COUNSEL]: I would proffer to the
court that the Defendant's testimony will be
that he was asked to take the breath test,
and was told to breath [sic] deeply, in
preparation for breathing deeply into this
machine, that doing so caused him to incur a
fit of coughing because of his asthma that
he has been suffering from for a number of
years. He tried to breath [sic] into the
machine a number of times. As a result of
the coughing because of the asthma, he was
not able to do so. He was taken before the

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 magistrate and he was asked to try the test
again. He could not because of his coughing
and he was issued a citation for refusal.

THE COURT: That's not before that [sic]
court.

Defense counsel argued that Code § 18.2-268.2 requires that

a "'blood test shall be given'" if "'the breath test is

unavailable or the person is physically unable to submit to a

breath test.'" Counsel made the following argument:

That's mandatory. "Shall be given." I will
proffer to the Court that not only was it
not given, it was not even offered. And
that is a violation of 18.2-268.2, and there
is a long line of cases that talks about it.
He was deprived of his opportunity to
produce evidence that would establish his
innocence in violation of this code section.
We can't bring that to the Court's attention
without this evidence. If we bring this to
the Court's attention and the Court agrees
it's a violation, the remedy pursuant to the
[case law] out of the Court of Appeals is
dismissal of the prosecution of the D.W.I.
because he was deprived of the statutory
right to present evidence in his own defense
in as much as 18.2-268.2 says that the blood
test shall be given, and it was not even
offered in this case.
If it had been offered and he had
refused that, we wouldn't be standing here,
or at least I wouldn't be making the
argument, but the evidence was that it was
not even offered, let alone required, that
is a violation. And it requires a dismissal
of the prosecution as a remedy.

The Commonwealth argued that, because a driver no longer

has a choice of tests, such evidence was relevant only to the

refusal charge. The trial judge sustained the objection. The

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prosecution also asserted that trial should proceed and

appellant's guilt should be determined from the other evidence.

Defense counsel countered that appellant was deprived of

his right to present possibly exculpatory evidence, after which

the following exchange took place:

THE COURT: So you're saying because he
started coughing and couldn't conduct the
test that they offered, they should have
given him a blood test --

[DEFENSE COUNSEL]: The statute says so.

THE COURT: And because they didn't give him
a blood test, this case should be dismissed?

[DEFENSE COUNSEL]: Yes, sir.

THE COURT: Your exception is noted.

After refusing appellant's testimony about the breath test,

the trial court allowed defense witness Marietta Warden to

testify as an expert about the effect of alcohol on a person's

blood alcohol level, and to render an opinion about appellant's

behavior and blood alcohol level based on the amount of alcohol

appellant told her he had consumed. 1 In response to the trial

court's questions, Warden said that appellant told her he was an

asthmatic and that he had suffered an asthmatic attack the night

he was arrested.

1
Warden did not meet with appellant at the time of his June
7, 1997 arrest; instead, she interviewed him on June 25, 1997
and on July 16, 1997, during which time appellant provided
background data upon which Warden based her opinions.

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 After the parties rested, defense counsel raised "[o]ne

tidy bookkeeping matter." "In order for the record to be

complete and to preserve all this," and "for purposes of the

evidentiary basis for the renewal of the motion to strike,"

defense counsel introduced Exhibits 5 and 6. Exhibit 5 is a

copy of the summons for the refusal charge from the district

court indicating that the refusal charge was dismissed, and

Exhibit 6 is entitled "Certificate of Refusal--Breath/Blood

Test." Exhibit 6 is signed by the magistrate, and under the

magistrate's signature is a handwritten notation regarding the

breath test refusal. Defense counsel asked the trial judge "to

take them and mark them," and "take judicial notice of the

Court's own records." The following colloquy took place:

[DEFENSE COUNSEL]: For the purpose of the
record, I renew the motion to strike that
was entered earlier. The Court has probably
heard the totality of the argument in
addressing the Commonwealth's objections to
the admissibility of that basis evidence.
Let me just reiterate so the record is
complete, that it's based on a violation of
the [sic] 18.2-268.3B inasmuch as the
statute requires that if the breath test is
unavailable or the person is physically
unable to submit to the breath test, a blood
test can be given and that was not done in
this case.

THE COURT: The record will reflect that
five and six are admitted for the purposes
stated.

[DEFENSE COUNSEL]: Yes, sir.

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 THE COURT: And your motion to strike is
denied and your exception is noted.

[DEFENSE COUNSEL]: And we ask the Court to
take judicial notice of the Court's own
records, you will see the certified copies
of not only the refusal certificate issued
by the magistrate, and made a part of the
General District Court records with
reference to the trial of the charge of
refusal itself and the warrant charging Mr.
Lamay with refusal. Also, the back side of
each of those documents, specifically the
refusal wherein the case was tried, and I'm
not certain, in a civil case, it says not
guilty, it says charge dismissed. It's not
a criminal case, it can't be guilty or not
guilty. It does indicate it was dismissed.

THE COURT: I don't believe that it is in
this file. It has its own file, I think.
And that file.

[DEFENSE COUNSEL]: This is a General
District Court file from which those were
extracted and the clerk certified them on
the flip side.

THE COURT: I will take judicial notice.
It's not in this file, you're aware of that?

[DEFENSE COUNSEL]: That is correct.

THE COURT: That will be part of the record.

Beneath the magistrate's signature on Exhibit 6 is the

following handwritten statement: "Accused gave insufficient

sample and would not answer when asked if he wished to try the

test again."

After hearing argument regarding some discrepancies between

Lichtenberg's testimony and the testimony of appellant, the

trial court found appellant "not a credible witness" and found

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him guilty of DUI. The court sentenced appellant to twelve

months in jail with all but ninety days suspended. The court

also fined appellant $2,500. On December 12, 1997, the court

denied appellant's motion for reconsideration.

III.

Appellant contends the trial court erred in refusing to

allow testimony relating to the failure of the police to comply

with the requirement that when a person is physically unable to

submit to a breath test, a blood test shall be given. 2 We have

not had an opportunity to construe fully the provisions of Code

§ 18.2-268.2 since its effective revision date of January 1,

1995. Therefore, this case comes before us as one of first

impression and requires us to analyze Code § 18.2-268.2(B) in

situations where at his or her DUI trial an accused DUI driver

alleges physical inability to take a breath test. We must

determine, under the limited facts of this case, what evidence

is admissible, the procedures to follow, and what remedy, if

any, should issue.

2
Appellant raises two other issues: whether there was error
in the trial court's refusal to dismiss the case due to the
Commonwealth's alleged failure to follow the statute, and
whether there was error in the trial court's failure to find a
reasonable doubt as to appellant's guilt, given the alleged
discrepancies in the evidence presented at trial. Because of
our decision to remand based on an evidentiary error, we do not
reach either of these issues on appeal.

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 IV.

Code § 18.2-268.2(B)

(Implied Consent to Post-Arrest Chemical Test)

Code § 18.2-268.2 was revised by the legislature in 1994 by

"Acts 1994, cc. 359 and 363." It took effect on January 1,

1995. Before the revision, Code § 18.2-268.2(B) offered a

choice as to which test to take and provided as follows:

Any person so arrested for a violation
of § 18.2-266(i) or (ii) or both, or
§ 18.2-266.1 or of a similar ordinance shall
elect to have either a blood or breath
sample taken, but not both. If either the
blood test or breath test is not available,
then the available test shall be taken and
it shall not be a matter of defense if the
blood test or the breath test is not
available. If the accused elects a breath
test, he shall be entitled upon request, to
observe the process of analysis and to see
the blood-alcohol reading on the equipment
used to perform the breath test. If the
equipment automatically produces a written
printout of the breath test result, the
printout or a copy, shall be given to the
accused.

The current version of Code § 18.2-268.2(B) provides as

follows:

Any person so arrested for a violation
of § 18.2-266(i) or (ii) or both, or
§ 18.2-266.1 or of a similar ordinance 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. The accused shall,
prior to administration of the test, be
advised by the person administering the test
that he has the right to observe the process
of analysis and to see the blood-alcohol
reading on the equipment used to perform the
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 breath test. If the equipment automatically
produces a written printout of the breath
test result, the printout, or a copy, shall
be given to the accused.

In its 1995 revision, the legislature eliminated the

driver's option to elect which test to take and mandated that a

driver accused of DUI "shall submit to a breath test." Only

when a breath test is unavailable or the accused is physically

unable to take one, is a blood test to be given.

Under the former statute, the legislature mandated that if

one test is unavailable, "then the available test shall be

taken." (Emphasis added.) The revised statute provides that if

the breath test is unavailable or the person is physically

unable to take it, "a blood test shall be given." (Emphasis

added.)

Code § 18.2-268.3

(The Refusal Statute)

The current version of Code § 18.2-268.3, the refusal

statute, reads in pertinent part:

A. If a person, after having been arrested
for a violation of §§ 18.2-51.4, 18.2-266 or
§ 18.2-266.1 or of a similar ordinance and
after having been advised by the arresting
officer that a person who operates a motor
vehicle upon a public highway in this
Commonwealth is deemed thereby, as a
condition of such operation, to have
consented to have samples of his blood and
breath taken for chemical tests to determine
the alcohol or drug content of his blood,
and that the unreasonable refusal to do so
constitutes grounds for the revocation of

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the privilege of operating a motor vehicle
upon the highways of this Commonwealth,
refuses to permit blood or breath or both
blood and breath samples to be taken for
such tests, the arresting officer shall take
the person before a committing magistrate.
If he again so refuses after having been
further advised by the magistrate of the law
requiring blood or breath samples to be
taken and the penalty for refusal, and so
declares again his refusal in writing upon a
form provided by the Supreme Court, or
refuses or fails to so declare in writing
and such fact is certified as prescribed
below, then no blood or breath samples shall
be taken even though he may later request
them.

B. The form shall contain a brief statement
of the law requiring the taking of blood or
breath samples and the penalty for refusal,
a declaration of refusal, and lines for the
signature of the person from whom the blood
or breath sample is sought, the date, and
the signature of a witness to the signing.
If the person refuses or fails to execute
the declaration, the magistrate shall
certify such fact and that the magistrate
advised the person that a refusal to permit
a blood or breath sample to be taken, if
found to be unreasonable, constitutes
grounds for revocation of the person's
privilege to operate a motor vehicle on the
highways of this Commonwealth. The
magistrate shall promptly issue a warrant or
summons charging the person with a violation
of § 18.2-268.2. The warrant or summons
shall be executed in the same manner as
criminal warrants.

* * * * * * *

E. The declaration of refusal or
certificate of the magistrate shall be prima
facie evidence that the defendant refused to
allow a blood or breath sample to be taken
to determine the alcohol or drug content of

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 his blood. 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.

V.

Admissibility of Evidence Describing the Unsuccessful
Attempt to Give the Breath Test

"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) (citation omitted).

Code § 18.2-268.2(A), the implied consent law, mandates

that any person arrested for violating Code § 18.2-266 within

two hours of such offense "shall be deemed thereby as a

condition of such [vehicular] operation, to have consented to

have samples of his blood, breath, or both blood and breath

taken for a chemical test to determine the" alcohol and/or drug

content of his or her blood. Subsection (B) mandates that a

"person so arrested" for such violations "shall submit to a

breath test." The subsection further directs 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."

In Walton v. City of Roanoke, 204 Va. 678, 133 S.E.2d 315

(1963), the defendant alleged that admission of blood alcohol

test results violated his constitutional privilege against

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self-incrimination. The Supreme Court rejected that argument,

and, in dicta, explained the following about Virginia's former

implied consent statute:

The provisions of [the implied consent law]
serve a salutary purpose. A chemical
analysis of one's blood provides a
scientifically accurate method of
determining whether a person is intoxicated,
removes the question from the field of
speculation and supplies the best evidence
for that determination. It protects one who
has the odor of alcohol on his breath but
has not been drinking to excess, and one
whose conduct may create the appearance of
intoxication when he is suffering from some
physical condition over which he has no
control.

Id. at 683, 133 S.E.2d at 319 (emphases added).

Although present Code § 18.2-268.2 requires only a breath

test, there remain three statutorily defined situations allowing

or justifying the administration of a blood test rather than a

breath test: (1) unavailability of a breath test; (2) a

violation of Code § 18.2-266(iii) or (iv), involving the use of

other drugs; and (3) a suspect's physical inability to take a

breath test.

Unavailability

Under the former DUI statute that offered drivers the

choice of a blood or breath test, the Commonwealth could assert

that one of the tests was unavailable when a suspected driver

was not provided the test that he or she elected.

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 In Breeden v. Commonwealth, 15 Va. App. 148, 150, 421

S.E.2d 674, 675 (1992), decided under former Code § 18.2-268(C),

we placed the burden on the Commonwealth to establish that a

requested test was unavailable. We held that "the Commonwealth

must establish the reasons for the unavailability of one of the

tests before denying a driver his or her test of choice." Id.

at 150, 421 S.E.2d at 675-76. We explained that "[o]nce the

Commonwealth has elected to have a driver take a blood or breath

test pursuant to Code § 18.2-268, the driver has a right to

receive the benefits of the test" and that "the Commonwealth

must establish the reasons for the unavailability of one of the

tests before denying a driver his or her test of choice." Id.

In light of Breeden, we have consistently assigned the

Commonwealth the burden to explain the unavailability of a

requested test. See, e.g., Commonwealth v. Gray, 248 Va. 633,

636, 449 S.E.2d 807, 809 (1994) (affirming refusal conviction,

holding that when accused chooses particular test, "and that

test cannot be administered because it allegedly is

unavailable," the Commonwealth must establish a reasonable basis

to support such finding); Herring v. Commonwealth, 28 Va. App.

588, 591, 507 S.E.2d 638, 639 (1998) (holding that the

Commonwealth bears the burden of establishing that a breath test

was unavailable); Walker v. City of Lynchburg, 22 Va. App. 197,

198, 468 S.E.2d 164, 165 (1996) (holding that Commonwealth

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satisfied its burden and "provided sufficient basis to determine

unavailability of the [requested] blood test" under former Code

§ 18.2-268.2); Snead v. Commonwealth, 17 Va. App. 372, 374, 437

S.E.2d 239, 241 (1993) (holding that if an election is not

honored because of unavailability, the Commonwealth must

establish a valid reason for the lack of availability of the

test requested); Sullivan v. Commonwealth, 17 Va. App. 376, 378,

437 S.E.2d 242, 243 (1993) (holding that Commonwealth "bears the

burden of showing" that unavailability of requested tests was

reasonable); Mason v. Commonwealth, 15 Va. App. 583, 585, 425

S.E.2d 544, 545 (1993) (holding that "[i]f one of the tests is

unavailable the government must provide a reasonable explanation

for its unavailability").

"Finally, if the unavailability of the test is found to be

unreasonable, '[m]ere suppression of the result of the test not

requested . . . does not cure the deprivation.' The only

appropriate remedy is reversal of the conviction and dismissal

of the charges." Sullivan, 17 Va. App. at 378, 437 S.E.2d at

243 (quoting Breeden, 15 Va. App. at 150, 421 S.E.2d at 676).

Physical Inability

By revising Code § 18.2-268.2, effective January 1, 1995,

the legislature eliminated an accused driver's choice of tests

but added language to accommodate situations where an accused is

physically unable to take a breath test. These legislative

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changes require us to interpret and apply the current statute in

order to effect the legislature's intended purpose. In other

words, we must determine how that language comes into play in a

DUI case, who has the burden to establish physical inability,

and what procedures are to be followed.

Because it is the accused driver whose physical inability

is at issue in such situations, logic dictates that the burden

should fall 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.

Here, the trial court refused to consider evidence relating

to administration of the breath test, ostensibly because it was

the same evidence presented in the district court trial on the

refusal charge and, thus, was not relevant. As discussed below,

prior case law under the former DUI statutes supports that view.

In Cash v. Commonwealth, 251 Va. 46, 466 S.E.2d 736 (1996),

the defendant was charged with driving under the influence and

with refusing to submit to a blood or breath test. The district

court acquitted her of the DUI charge but convicted her of the

refusal charge. See id. at 48, 466 S.E.2d at 737. She appealed

the refusal conviction to the circuit court.

Pretrial, the circuit court granted the
prosecutor's motion to exclude certain

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 evidence proffered by [Cash] 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.

Id.

In determining whether the trial court erred in granting

the Commonwealth's motion and excluding such evidence, the

Supreme Court pointed out that "the declaration of refusal or

the magistrate's certificate is prima facie evidence that the

defendant refused to submit to testing." Id. at 49, 466 S.E.2d

at 737. "'However, this shall not prohibit the defendant from

introducing on his behalf evidence of the basis of his refusal.

The court shall determine the reasonableness of such refusal.'"

Id. at 49, 466 S.E.2d at 738 (quoting Code § 18.2-268.3(E)).

The Court then provided the following comments regarding the DUI

and refusal statutes:

[T]his 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."

Id. at 49, 466 S.E.2d at 738 (quoting Deaner v. Commonwealth,

210 Va. 285, 289, 170 S.E.2d 199, 201 (1969)).

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 At her refusal trial, Cash sought to present evidence about

the small amount of alcohol she allegedly consumed, witness

testimony that she was not under the influence, testimony that

her driving was not erratic, testimony about the police

officer's abusive conduct, evidence about her satisfactory

performance on the field sobriety tests, testimony regarding her

requests to consult an attorney, and evidence relating to her

expressed concern that she was being framed. See id. at 50-51,

466 S.E.2d at 738-39.

The Court held that "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 a DUI trial, was utterly inadmissible in the

refusal trial." Id. at 51-52, 466 S.E.2d at 739. Moreover, the

Court ruled that Cash's "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." Id.

at 52, 466 S.E.2d at 739. In addition to detailing evidence

that did not provide a reasonable basis for refusing a test, the

Court also explained what type of evidence could provide a basis

for refusal when it stated, "[i]llustrative of a refusal that

would be deemed reasonable is when 'a person's health would be

endangered by the withdrawal of blood.'" Id. at 50, 466 S.E.2d

at 738 (quoting Deaner, 210 Va. at 293, 170 S.E.2d at 204). See

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also Bailey v. Commonwealth, 215 Va. 130, 131, 207 S.E.2d 828,

829 (1974) (holding that there must be some "reasonable factual

basis for the refusal," such as, endangerment of the health of

the accused by the withdrawal of blood).

The Supreme Court's explanation that DUI and refusal cases

are separate and distinct, and its consistent pronouncement that

evidence on one charge is usually irrelevant and inadmissible in

a trial on the other charge, has overshadowed the revised

portion of Code § 18.2-268.2 anticipating conditions where an

accused is physically unable to take a breath test.

By including physical inability as a condition precluding

the administration of the required test intended to benefit an

accused driver, the legislature contemplated situations where

physical inability would arise and evinced its intention to

allow accused drivers to establish that fact. Under Code

§ 18.2-268.2, if the accused satisfies that burden before the

trial court, he or she is entitled to a blood test. Because we

hold that, under appropriate circumstances, an accused bears the

burden of establishing Code § 18.2-268.2(B) physical inability,

such evidence must be and is admissible in a DUI trial. In

summary, whereas evidence unique to a refusal charge has

historically been precluded at a DUI trial, and vice-versa, the

changes in Code § 18.2-268.2 require a different evidentiary

result.

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 VI.

For the foregoing reasons, the trial court abused its

discretion in not permitting appellant to elicit testimony

relating to his physical inability to take the breath test. On

remand, the trial court is directed to permit appellant to

present evidence regarding his physical inability to perform the

breath test, after which the Commonwealth may present rebuttal

evidence. The trial court must then rule whether the accused

has sufficiently carried his burden of establishing his physical

inability. If the trial court finds that the accused has

fulfilled this burden and that a blood test was not offered,

then the charge must be dismissed. Accordingly, we reverse and

remand for proceedings consistent with this opinion.

Reversed and remanded.

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