COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Felton and Senior Judge Overton
Argued at Chesapeake, Virginia
LEE BANKS WALKER
MEMORANDUM OPINION * BY
v. Record No. 0349-02-1 JUDGE WALTER S. FELTON, JR.
APRIL 22, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Robert B. Cromwell, Jr., Judge
Moody E. Stallings, Jr. (Kellam T. Parks;
Stallings & Richardson, P.C., on brief), for
appellant.
Stephen R. McCullough, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Lee Walker was convicted in a bench trial of driving under
the influence of alcohol ("DUI"), third or subsequent offense, in
violation of Code §§ 18.2-266 and 18.2-270. On appeal, Walker
contends the trial court erred in denying his motion to dismiss
the DUI charge because he was deprived of the right to and benefit
of a breath analysis. For the following reasons, we affirm the
judgment of the trial court.
I. BACKGROUND
On July 15, 2001, Virginia Beach Police Officer Scott
Johnson observed Lee Walker's vehicle weaving. Officer Johnson
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
activated his lights and stopped Walker. When Officer Johnson
approached Walker, he noticed that Walker "had a very, very
strong odor of alcohol about his person." Officer Johnson asked
Walker for his driver's license and asked him a few questions.
Some of Walker's responses were coherent, but others were not.
Officer Johnson then asked him to step out of the vehicle.
As Walker stepped from the automobile, he almost fell over.
He managed to walk to the back of his vehicle by holding on to
it. Officer Johnson asked Walker if he had been drinking and if
he had any medical problems or conditions. As to the question
of medical problems or conditions, Walker responded that he had
none. However, he responded in the affirmative to the question
regarding the consumption of alcohol. Walker indicated that he
consumed three beers approximately two hours prior to the stop.
Officer Johnson proceeded to conduct three field sobriety
tests. Walker failed each test. During the horizontal gaze
test, he could not focus at all on Officer Johnson's pen or
finger and almost fell over because he was swaying so badly.
During the one-legged stand test, in a ten-second period Walker
almost fell over twice. Finally, during the walk and turn test,
he just stumbled around.
As a result of Walker's failing the field sobriety tests,
Officer Johnson placed him under arrest for driving under the
influence of alcohol. Once Walker was in custody, Officer
Johnson attempted to administer a breathalyzer test. He
- 2 -
instructed Walker to blow into the machine "hard enough" until
he heard a tone. Officer Johnson testified he noticed Walker
"barely blew in the machine," which resulted in the machine
testing apparatus not being activated. He informed Walker he
was not performing the test correctly, "waited a second," and
gave him a second opportunity to take the breath test. Officer
Johnson stated that Walker once again did not blow hard enough
into the machine. The machine registered an "invalid sample,"
and printed out a certificate of that result. After Walker
twice blew ineffectively into the machine, and the machine
registered "invalid sample," Officer Johnson did not attempt to
administer the test again.
On cross-examination, Officer Johnson admitted, based on
his training and knowledge of the printed manual for the
breathalyzer, the machine will reach an "invalid sample" result
if it detects a sharp rise in the blood alcohol concentration
because of "mouth alcohol." If an "invalid sample" result
occurs, the manual directs that a twenty-minute period must be
observed before another breath test can be performed. By
contrast, the manual states that a "deficient sample" message
signifies that the subject started blowing into the machine, but
did not meet the required parameters for a valid test, such as
not blowing hard enough.
Walker was indicted for driving under the influence of
alcohol, third or subsequent offense, in violation of Code
- 3 -
§§ 18.2-266, 18.2-270, and 18.2-10. Following the presentation
of the Commonwealth's evidence at trial, Walker made a motion to
dismiss the charge, arguing he was denied the right to and the
benefit of breathalyzer results. The motion was denied, and
Walker was subsequently convicted.
II. ANALYSIS
On appeal, we review the evidence in
the light most favorable to the
Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. The
judgment of a trial court sitting without a
jury is entitled to the same weight as a
jury verdict and will not be set aside
unless it appears from the evidence that the
judgment is plainly wrong or without
evidence to support it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987). Walker contends that the trial court erred in denying
his motion to dismiss the DUI charge because he was denied the
right to and benefit of a breath analysis. We disagree.
In viewing the evidence in the light most favorable to the
Commonwealth, we conclude that there is sufficient evidence in
the record to support the reasonable objective finding by the
trial court that Walker deliberately refused to cooperate in
submitting a breath sample. Walker had two prior DUI
convictions. He was arrested for his third DUI offense after
failing three field sobriety tests administered by Officer
Johnson. He was taken into custody and was twice given the
opportunity to submit to a breath sample. During the first
- 4 -
attempted breathalyzer test, Walker barely blew into the
machine, which resulted in the machine not being activated to
take a valid breath sample. Officer Johnson informed Walker he
was not performing the breath test properly, "waited a second,"
and gave Walker a second opportunity to perform the breath test.
Walker once again failed to blow into the machine as he was
instructed to do so by Officer Johnson.
The second breath test yielded a result of "invalid
sample." When the breathalyzer machine detects a sharp rise in
the blood alcohol concentration, due to residual mouth alcohol,
an "invalid sample" occurs. Residual mouth alcohol will be
detected generally if a subject belches or vomits immediately
prior to the administration of the breath test. As a result,
the breathalyzer operator must wait twenty minutes before
attempting to administer a subsequent breath test.
Officer Johnson did not attempt to administer the test
again, and Walker did not indicate to Officer Johnson that there
was a medical reason why he could not provide a valid breath
sample. See Lamay v. Commonwealth, 29 Va. App. 461, 475-76, 513
S.E.2d 411, 418 (1999). After twice failing to obtain a valid
breath sample from Walker, it was reasonable for Officer Johnson
objectively to conclude that Walker was not cooperating and that
he would continue his non-cooperation if additional tests were
attempted.
- 5 -
Accordingly, the trial court did not abuse its discretion
in denying Walker's motion to dismiss. There was sufficient
evidence in the record for the trial court to determine that
Walker deliberately refused to cooperate in submitting to a
breath test. In addition, from the evidence of Walker's
admission to Officer Johnson that he had consumed alcohol, his
appearance, his incoherent speech, his behavior, and his failing
field sobriety tests, there was ample evidence from which the
trial court could conclude beyond a reasonable doubt that Walker
was guilty of the offense charged.
The judgment of the trial court is affirmed.
Affirmed.
- 6 -
Lee Banks Walker v. Commonwealth
Combined Opinion