COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia
KEVIN WAYNE KILLINGSWORTH
MEMORANDUM OPINION * BY
v. Record No. 2447-98-3 JUDGE JAMES W. BENTON, JR.
NOVEMBER 9, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Robert P. Doherty, Jr., Judge
Christopher K. Kowalczuk for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Kevin Wayne Killingsworth was convicted of driving under the
influence of alcohol as a subsequent offense. See Code
§§ 18.2-266 and 18.2-270. He contends the trial judge erred
(1) in denying his motion to suppress, (2) by permitting an
officer who lacked the requisite training to testify concerning a
breath test, and (3) by denying his motion to strike the evidence.
For the reasons that follow we affirm the conviction.
I.
"In reviewing a trial [judge's] denial of a motion to
suppress, '[t]he burden is upon [the defendant] to show that th[e]
ruling, when the evidence is considered most favorably to the
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Commonwealth, constituted reversible error.'" McGee v.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)
(en banc) (citation omitted). The standard for evaluating an
investigatory detention is as follows:
In order to justify the brief seizure of a
person by an investigatory stop, a police
officer need not have probable cause;
however, he must have "a reasonable
suspicion, based on objective facts, that
the [person] is involved in criminal
activity." In determining whether a police
officer had a particularized and objective
basis for suspecting that the person stopped
may be involved in criminal activity, a
court must consider the totality of the
circumstances.
Ewell v. Commonwealth, 254 Va. 214, 217, 491 S.E.2d 721, 722
(1997) (citations omitted).
Although we are bound to review de novo the ultimate question
of reasonable suspicion, "fact[ual findings] are binding on appeal
unless 'plainly wrong.'" McGee at 198 n.1, 487 S.E.2d at 261 n.1
(citations omitted). Moreover, when we review the trial judge's
refusal to suppress evidence, we consider the "evidence adduced at
both the trial and suppression hearing." Greene v. Commonwealth,
17 Va. App. 606, 608, 440 S.E.2d 138, 139 (1994); see also Spivey
v. Commonwealth, 23 Va. App. 715, 721, 479 S.E.2d 543, 546 (1997).
An employee at a Hardees' Restaurant testified that on
November 9, 1997, he saw Kevin Wayne Killingsworth operating a
large Dodge Ram truck on the restaurant's lot. The truck was in
a service line with other vehicles, and it was "[m]oving back
- 2 -
and forth." Killingsworth was "revving the engine" and moving
the truck "like he was almost getting ready to hit the car" in
front of him. The employee telephoned the police and reported
the incident.
A police officer testified that he was sent to investigate
a driver that "was lunging [his truck] forward at other vehicles
and . . . yelling out the window." The dispatcher gave the
officer the description and license plate number of the truck,
told the officer "to investigate a drunk driver at that
location," and advised the officer that the restaurant's manager
had made the complaint. When the officer arrived at the
restaurant, he saw a truck in the service line that matched the
description and bore the license plate number he had been given.
The officer approached the passenger side window and asked
Killingsworth to leave the service line and park the truck.
After Killingsworth parked the truck, the officer spoke
with Killingsworth and detected "a strong odor of alcoholic
beverage on his breath . . . and bloodshot eyes." The officer
asked Killingsworth to exit the truck and perform "field tests."
After Killingsworth improperly performed the tests, the officer
arrested him for driving under the influence of alcohol. During
the encounter, Killingsworth told the officer he had drunk four
beers at a bar.
"Existing case law supports the Commonwealth's contention
that when [the officer] stopped [Killingsworth], based on the
- 3 -
information he had received and the facts observed, he had a
reasonable basis for making a brief investigative stop to
determine whether [Killingsworth] was or had been engaged in
criminal conduct." Lee v. Commonwealth, 18 Va. App. 235, 240,
443 S.E.2d 180, 182 (1994). As in Lee, the officer detained the
accused based on a radio dispatch that a person who was
allegedly intoxicated was creating a disturbance at a store.
The information concerning Killingsworth came from the store
manager, not an anonymous informant. Thus, when the officer
arrived and confirmed that the truck was the vehicle involved in
the disturbance, the officer "possessed a particularized and
objective basis for making an investigatory stop of [the
accused's] automobile." Id.; see also Layne v. Commonwealth, 15
Va. App. 23, 24-25, 421 S.E.2d 215, 216 (1992) (upholding a stop
based on information from a dispatcher directing the officer to
investigate a report from an identified person of an assault and
battery). Accordingly, we hold the trial judge did not err in
denying Killingsworth's motion to suppress.
II.
Killingsworth contends that the trial judge erroneously
admitted the breath test results because the operator was not
properly licensed pursuant to the statute. We addressed the
requirements of Code § 18.2-268.9 in Reynolds v. Commonwealth,
30 Va. App. 153, 515 S.E.2d 808 (1999). There, we held that an
officer who had received forty hours of training on the
- 4 -
Breathalyzer 900A machine and an additional eight hours of
training on the Intoxilyzer 5000 met the requirements of the
statute. See id. at 160-62, 515 S.E.2d at 811-13. That holding
is dispositive of this issue.
The officer testified that he was licensed to conduct
breath alcohol tests on the Intoxilyzer 5000. He completed
forty hours of training on the Breathalyzer 900A machine during
a one-week course in 1996; he later completed "an eight-hour
course on the Intoxilyzer 5000." Applying the ruling in
Reynolds, we hold that the trial judge did not err in admitting
the results of the Intoxilyzer 5000 breath test.
III.
Killingsworth made a motion to strike the evidence on the
ground that no evidence established a time link between the
results of the breath test and his driving. On appeal, he
contends the trial judge erred in denying the motion.
During the trial, the judge ruled that "the Commonwealth
may not introduce the Certificate of Blood Alcohol Analysis" and
also ruled that the Commonwealth was "not entitled to the
[statutory] presumptions [of intoxication] normally available to
the prosecution." The judge further ruled, however, that "the
Commonwealth may introduce evidence concerning the results of
the tests given [Killingsworth] . . . by scientific experts
and/or other means." According to those rulings, the
Commonwealth still was required to prove that Killingsworth
- 5 -
drove while under the influence of alcohol in violation of Code
§ 18.2-266(ii). See Essex v. Commonwealth, 228 Va. 273, 286,
322 S.E.2d 216, 223 (1984) (holding that where a blood alcohol
test was not conducted within the statutory framework, the test
results could be used as probative evidence of intoxication
without a statutory presumption of intoxication).
Killingsworth limits his sufficiency argument to the issue
of the timing of the breath test results. At trial, he did not
contest the admissibility of the test results. Instead, he
contends the evidence, which fails to establish the time period
between driving and testing, was insufficient to support his
conviction. The officer testified, however, that Killingsworth
remained with him continuously from arrest until they reached
the police station and that Killingsworth did not drink or eat
anything during that time. Consistent with "the checklist
provided . . . by the Division of Forensic Science," the officer
observed Killingsworth for twenty minutes after he arrested
Killingsworth and before obtaining his breath sample. Although
the officer did not provide the exact time that he gave the
breath test, he did indicate that he gave it after
Killingsworth's arrest and after Killingsworth appeared before
the magistrate and volunteered to take the breath test. The
result of the breath test indicated a blood alcohol content of
0.17 percent by weight by volume.
- 6 -
Dr. Irma Adams, who was qualified as an expert in
toxicology and pharmacology, opined that a person becomes
impaired at a blood alcohol concentration of .05 percent by
weight by volume. She further testified that the blood alcohol
concentration "shoots up fairly rapidly" while a person is
drinking alcohol. She said, "once [the alcohol] is all
absorbed, you will reach a peak," and remain at that blood
alcohol concentration level for a short while before the level
decreases.
The testimony of the officer and Dr. Adams provided a
sufficient basis upon which the jury could find beyond a
reasonable doubt a link between Killingsworth's alcohol
consumption and his driving. The jury had before it, however,
much more evidence than the test result. Killingsworth told the
officer that he had earlier consumed four beers at a bar. The
officer recovered from Killingsworth's truck "two bottles of
Budweiser, one wine cooler, [and] six cans of Coors Light." The
officer also detected a strong odor of alcohol on
Killingsworth's breath and noticed his eyes were bloodshot.
During the "finger-to-nose" field sobriety test, Killingsworth
was "unsteady on his feet" and could not perform the
"heel-to-toe test" as instructed.
The absence of evidence establishing when the test was
administered went to the weight of the evidence and was a
factor, as was the other evidence, for the jury to consider.
- 7 -
It is well established that the trier of
fact ascertains a witness' credibility,
determines the weight to be given to their
testimony, and has the discretion to accept
or reject any of the witness'
testimony. . . . In determining the weight
to be given the testimony of an expert
witness, the fact finder may consider the
basis for the expert's opinion.
Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668-69
(1997) (en banc) (citations omitted).
The Commonwealth's evidence was competent, was not
inherently incredible, and was sufficient to prove beyond a
reasonable doubt that Killingsworth was driving under the
influence of alcohol. Accordingly, the trial judge did not err
in denying Killingsworth's motion to strike.
For these reasons, we affirm the conviction.
Affirmed.
- 8 -