COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Overton
Argued at Alexandria, Virginia
KIMBERLY STACY, S/K/A
KIMBERLY DAWN STACY
OPINION BY
v. Record No. 0923-95-4 JUDGE SAM W. COLEMAN III
MAY 14, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge
Bruce M. Blanchard (Odin, Feldman &
Pittleman, P.C., on briefs), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Kimberly Dawn Stacy appeals her conviction for driving while
intoxicated in violation of Code § 18.2-266. Stacy contends that
the trial court erred by admitting the results of an alka-sensor
test at the pretrial suppression hearing to determine whether the
police officer had probable cause to make an arrest, and that
absent the alka-sensor test results, the evidence was
insufficient to support a finding that the officer had probable
cause to arrest her. Consequently, Stacy asserts, the blood
alcohol test taken following her illegal arrest should have been
excluded at trial and, therefore, the evidence is insufficient to
sustain her conviction. We hold that the trial court did not err
by admitting the alka-sensor test result for the purpose of
determining that the officer had probable cause to arrest Stacy.
Accordingly, we hold that the results of the blood test were
properly admitted at trial and affirm the defendant's conviction.
At approximately 2:10 a.m. on July 24, 1994, Corporal
Darrell Abate of the Arlington County Police Department observed
the defendant driving eastbound on Interstate 66. Officer Abate
twice witnessed the two right tires of the defendant's vehicle
cross over the white line separating the travel lane from the
paved shoulder within a distance of approximately one-half mile.
As a result, Abate activated his emergency equipment and stopped
the defendant.
Upon approaching the vehicle, Officer Abate identified the
defendant as the driver and asked for her operator's license and
registration, which she produced without difficulty. He detected
an odor of alcohol and noticed that the defendant's eyes were
bloodshot. When asked whether she had been drinking, the
defendant replied that she had consumed two beers and two glasses
of wine over the course of the evening and that she had taken the
last drink approximately two hours before being stopped. Officer
Abate then asked the defendant to perform field sobriety tests,
and the defendant exited her vehicle without difficulty.
The defendant first performed a thirty second leg raise,
which involved lifting one leg approximately six inches off the
ground with her arms at her side while counting aloud from zero
to thirty. The defendant performed this test as instructed
without lowering her foot, raising her arms for balance, or
counting improperly.
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Officer Abate next instructed the defendant to walk fifteen
steps, touching her feet heel to toe, on an imaginary straight
line while counting the steps out loud, and then to turn and walk
ten steps back in the same manner. The defendant walked ten
steps in the manner instructed and then turned and walked ten
steps again. Except for walking ten steps away instead of
fifteen, she performed the test well.
Officer Abate offered the defendant the opportunity to take
a roadside alka-sensor test and informed her that the test
results could not be used as evidence against her in court. She
consented to the alka-sensor test, which registered positive for
alcohol, and Abate arrested her for driving while intoxicated.
Officer Abate informed the defendant of her rights under the
Virginia Implied Consent Law, and she elected to take a blood
test. The certificate of blood alcohol analysis filed with the
trial court indicated that the defendant's blood alcohol content
was .13 percent by weight by volume.
Prior to trial, the defendant filed a Motion to
Dismiss/Motion to Suppress the blood test results on the ground
that Officer Abate did not have probable cause to arrest her. At
the suppression hearing, Abate recounted his observations of the
defendant's driving, her performance of the field sobriety tests
before being arrested, and he also testified, over the
defendant's objection, to the results of the roadside alka-sensor
test, which the trial court admitted. The trial court found that
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Officer Abate had probable cause to arrest the defendant.
Code § 18.2-267 provides that any person suspected of
driving while intoxicated is "entitled, if such equipment is
available, to have his breath analyzed to determine the probable
alcoholic content of his blood." If the breath analysis reveals
that alcohol is present in the suspect's blood, the police
officer may arrest the suspect, but the results of the analysis
are not admissible at trial to prove guilt.
Code § 18.2-267 provides, in relevant part, as follows:
D. Whenever the breath sample analysis
indicates that alcohol is present in the
person's blood, the officer may charge the
person with [driving while intoxicated]
. . . .
E. The results of the breath analysis shall
not be admitted into evidence in any
prosecution [for driving while intoxicated],
the purpose of this section being to permit a
preliminary analysis of the alcoholic content
of the blood of a person suspected of [having
driven while intoxicated].
The defendant contends that the term "prosecution" includes a
pretrial suppression hearing and, therefore, the trial court
violated Code § 18.2-267(E) by admitting the results of the
alka-sensor test in determining whether Officer Abate had
probable cause to make an arrest.
The pretrial suppression hearing was conducted to determine
whether Officer Abate had probable cause to arrest the defendant.
"[P]robable cause exists when the facts and circumstances within
the officer's knowledge, and of which he has reasonably
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trustworthy information, alone are sufficient to warrant a person
of reasonable caution to believe that an offense has been or is
being committed." Jones v. Commonwealth, 18 Va. App. 229, 231,
443 S.E.2d 189, 190 (1994) (quoting Taylor v. Commonwealth, 222
Va. 816, 820, 284 S.E.2d 833, 836 (1981), cert. denied, 456 U.S.
906, 102 S. Ct. 1753, 72 L.Ed.2d 163 (1982)). By providing in
Code § 18.2-267 that the officer may charge an individual with
driving while intoxicated on the basis of the results of a
preliminary breath test, the legislature has recognized that this
test is reasonably trustworthy to show that a person has consumed
alcohol for purposes of determining whether probable cause exists
to make an arrest. See Code § 18.2-267(D); Wohlford v.
Commonwealth, 3 Va. App. 467, 471, 351 S.E.2d 47, 49 (1986) ("By
providing an immediate chemical test at the scene, the suspected
driver and the suspecting officer are provided an impartial
arbitrator and whether the suspicion of driving under the
influence is well grounded is made clear for the benefit of
both").
The defendant contends, however, that because Code
§ 18.2-267(E) provides that the preliminary alka-sensor results
cannot be "admitted into evidence in any prosecution," the
statute cannot be interpreted, despite its express provision
allowing for a person to be charged, to sanction the use of a
preliminary breath test in determining probable cause to arrest.
(Emphasis added). The defendant asserts that subsection D was
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enacted merely to afford the arresting officer with immunity from
potential civil claims for false arrest.
We find that the defendant's emphasis on the term
"prosecution" in subsection E, providing that the alka-sensor
results shall not be admissible, ignores the obvious purpose of
subsection D and the fundamental rule of statutory construction
"that a statute must be construed from its four corners and not
by singling out particular words or phrases." Smith v.
Commonwealth, 8 Va. App. 109, 113, 379 S.E.2d 374, 376 (1989).
The clear purpose of subsection D, which authorizes the officer
to charge a suspect whose preliminary breath test registers
positive for the consumption of alcohol, is to recognize that the
test is sufficiently reliable to prove that a person has consumed
alcohol and that the fact of consumption may furnish reason to
believe that a person is intoxicated. Code § 18.2-267 contains
no language that supports the defendant's interpretation of it as
a grant of civil immunity. Her construction of Code § 18.2-267
would replace the "plain, obvious, and rational meaning of [the]
statute" with a strained construction that would defeat the
obvious purpose of the statute. Turner v. Commonwealth, 226 Va.
456, 459, 309 S.E.2d 337, 338 (1983).
Although the Supreme Court defined "prosecution" broadly in
Sigmon v. Commonwealth, 200 Va. 258, 105 S.E.2d 171 (1958), that
case dealt with a statute that barred duplicate "prosecutions"
for the same offense. The statute also included the term
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"proceeding," which led the Court to state that "[w]hile [the
terms] embrace in some respects the same definition, they are not
synonymous." Id. at 266, 105 S.E.2d at 177. Although the Court
stated that "'[p]roceeding' has a broader meaning" than the term
"prosecution," the Court held that for purposes of the statute at
issue "'prosecution' means the institution and carrying on of a
suit or proceeding to obtain or enforce some right or the process
of trying formal charges against an offender before a legal
tribunal." Id. at 267, 105 S.E.2d at 178.
By contrast, in Livingston v. Commonwealth, 21 Va. App. 621,
466 S.E.2d 757 (1996), we construed the term "prosecution" and
similar terminology in Code § 19.2-271.2, which defines the
proceedings in which interspousal immunity applies. We held that
the terms "in the case of a prosecution," "criminal cases," and
"prosecution for a criminal case" contemplate adversarial
proceedings, including a preliminary hearing, but do not include
the investigatory stages of a crime. Id. at 627, 466 S.E.2d at
760.
It is manifest from the purposes of the statutes under
consideration in Sigmon and Livingston, as well as the manner in
which the pertinent terminology was employed in the statutes at
issue, that an expansive definition of "prosecution" was
intended. Thus, it is clear that neither case, viewed in the
context in which they were decided, purports to establish a
universal definition of the term "prosecution."
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We hold that "prosecution," as it is used in Code
§ 18.2-267, does not include a pretrial suppression hearing to
determine the legality of the arrest; "prosecution" as
contemplated in this statute is limited to the proceedings
devoted to "determining the guilt or innocence of a person
charged with crime." Black's Law Dictionary 1221 (6th ed. 1990).
This interpretation is consistent with the obvious purpose of
Code §§ 18.2-267(D) and (E), which is "to permit a preliminary
analysis of the alcoholic content of the blood of a person
suspected of [driving while intoxicated]" and to authorize the
officer to charge an accused who tests positive, but to not allow
the test results to be admitted as evidence of guilt. The
requirement that the officer must advise the suspect that the
alka-sensor results cannot be "admitted into evidence in any
prosecution" merely informs the person that the test results will
not be considered in determining guilt or innocence. Therefore,
the trial court did not err by admitting the results of the
alka-sensor test at the pretrial hearing to determine probable
cause to arrest, which is the sole purpose for administering the
test. Because the alka-sensor test results were properly
considered along with the other evidence of intoxication to
establish probable cause to arrest, the blood test was not
illegally administered and, therefore, the evidence was
sufficient to sustain the conviction.
Affirmed.
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