COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Elder
Argued at Salem, Virginia
RODNEY DALE JONES
OPINION BY
v. Record No. 2836-97-3 JUDGE SAM W. COLEMAN III
JANUARY 12, 1999
TOWN OF MARION
FROM THE CIRCUIT COURT OF SMYTH COUNTY
Charles H. Smith, Jr., Judge
Sage B. Johnson for appellant.
Charles F. Lincoln for appellee.
Rodney Dale Jones appeals his conviction of driving under
the influence in violation of Code § 18.2-266. Jones contends
the trial court erred in denying his motion to strike because (1)
the arresting officer failed to offer him a preliminary breath
analysis pursuant to Code § 18.2-267, and (2) the arresting
officer failed to bring him before a magistrate to determine
probable cause as required by Code § 19.2-82. Finding no
reversible error, we affirm.
BACKGROUND
Officer Henderson observed Jones's van straddle the center
line and, despite oncoming traffic, turn from a left turn lane
without a green arrow. Henderson pulled Jones over, after which
Jones opened the door and began to fall out of his van.
Henderson caught Jones to stop his fall. Jones smelled of
alcohol and was not able to stand. Henderson testified that
Jones appeared physically unable to perform any field sobriety
tests, including a preliminary breath analysis; accordingly,
Henderson did not offer him the preliminary test. Henderson
arrested Jones at the scene and transported him to jail where
another officer administered a breathalyzer test that registered
a 0.27 percent blood alcohol level. Thereafter, Henderson,
without Jones present, obtained a warrant from a magistrate and
later served the warrant upon Jones. After the breathalyzer
test, Jones appeared briefly in the presence of the magistrate
while the administering officer submitted the results of the
breathalyzer test to the magistrate. Apparently, the arresting
officer, Jones, and the magistrate were at no time simultaneously
in each other's presence.
ANALYSIS
On appeal, we view the evidence in the light most favorable
to the prevailing party, granting to it all reasonable inferences
fairly deducible therefrom. See Higginbotham v. Commonwealth,
216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). We defer to the
trial court's findings of fact unless plainly wrong; however, we
review de novo the trial court's legal conclusions and the
application of legal principles to those facts. See Timbers v.
Commonwealth, 28 Va. App. 187, 193-94, 503 S.E.2d 233, 235-36
(1998).
Preliminary Breath Analysis
Jones argues that because Henderson did not offer him a
preliminary breath analysis as required by Code § 18.2-267, the
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trial judge should have granted his motion to strike the
evidence. "Any person who is suspected of a violation of [Code]
§ 18.2-266 or [Code] § 18.2-266.1 shall be entitled, if such
equipment is available, to have his breath analyzed to determine
the probable alcoholic content of his blood." Code § 18.2-267.
"[T]his Code section provides a mechanism to resolve a potential
on-the-scene dispute between the police and the accused
concerning the alcoholic content of the blood of the accused. It
is, however, a purely voluntary mechanism and no penalties attach
to a refusal to submit to these tests." Farmer v. Commonwealth,
12 Va. App. 337, 343, 404 S.E.2d 371, 374 (1991) (Koontz, C.J.,
dissenting). Henderson did not offer the preliminary test to
Jones.
The dispositive question is whether failure to offer the
preliminary breath test is grounds for reversal. In Wohlford v.
Commonwealth, 3 Va. App. 467, 351 S.E.2d 47 (1986), we considered
whether a failure to inform the accused of his right to refuse
the preliminary breath test prior to administering the test
invalidated the arrest. In Wohlford, the officer informed the
suspect of the right to a preliminary breath test but did not
inform the accused he could refuse the test. We noted in
Wohlford that even without the results of a preliminary breath
analysis the arresting officer had probable cause to arrest the
defendant. Therefore, despite the officer's not informing the
accused that he could refuse the test, the trial court properly
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refused to suppress the fruits of that arrest. See id. at
471-72, 351 S.E.2d at 49-50.
Jones correctly contends that the facts and issue in
Wohlford are clearly distinguishable from the facts and issue in
the present case. In Wohlford, the arresting officer
administered the preliminary test, albeit without informing the
accused of his right to refuse; Henderson neither informed Jones
of his right to have the test nor administered the test.
Wohlford states, although perhaps in dictum, that even
disregarding the preliminary breath test results, the officer had
probable cause to arrest. The function of the preliminary breath
test under Code § 18.2-267 is to provide an independent means to
determine and resolve questions concerning probable cause, but it
does not supplant other methods for a police officer to determine
probable cause. Here, the record establishes that Henderson had
sufficient probable cause to arrest Jones without the preliminary
test. Jones's erratic driving, the odor of alcohol upon him, and
the fact that he fell from the van and was not able to stand
created sufficient probable cause for the arrest for driving
while intoxicated.
Jones also argues that he was constitutionally prejudiced by
not having the preliminary breath test administered because he
was denied evidence that may have tended to corroborate his
testimony contesting the breathalyzer test results. The argument
fails because the statute expressly provides that the results of
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the preliminary breath test are not admissible "in any
prosecution under [Code] § 18.2-266 or [Code] § 18.2-266.1," but
are intended instead to resolve disputes at the scene regarding
probable cause to arrest. Code § 18.2-267(E). Therefore,
Henderson's failure to comply with Code § 18.2-267 does not
invalidate Jones's arrest.
Post-Arrest Probable Cause Determination
Jones contends that Henderson's failure to bring him before
a magistrate and to follow proper procedure for having a judicial
officer determine probable cause after a warrantless arrest
constitutes reversible error. Code § 19.2-82 dictates that a
"[p]erson arrested without a warrant shall be brought forthwith
before a magistrate" to determine whether probable cause exists.
The statute contemplates either a personal appearance or an
electronic appearance "in order that the accused and the
arresting officer may simultaneously see and speak to such
1
magistrate." Code § 19.2-82. Jones argues that Henderson's
failure to "present" Jones to the magistrate face-to-face, either
physically or through electronic means, violated the statute and
deprived him of the statutorily required probable cause
determination.
1
Although the statute requires that the arresting officer
and the accused appear together before the magistrate, the
parties' emphasis on the word "simultaneously" is misplaced. As
used in this section, and Code § 19.2-3.1, "simultaneously"
modifies "see and speak." Nevertheless, the statute provides
that the accused "shall be brought forthwith before a magistrate
. . . who shall proceed to examine the officer making the arrest
under oath."
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The statute directs that when a police officer arrests
without a warrant, the officer shall take the accused before a
magistrate "who shall proceed to examine the officer making the
arrest under oath." However, procedural violations of Code
§ 19.2-82 require the exclusion or suppression of evidence only
when the violation has infringed upon an accused's constitutional
rights. For example, in cases where the arresting officers have
delayed in bringing an accused before a magistrate, unless the
delay has deprived the accused of exculpatory evidence, the
subsequent conviction has been affirmed. See, e.g., Frye v.
Commonwealth, 231 Va. 370, 376, 345 S.E.2d 267, 273 (1986)
(stating that violation of the code provision "reaches a
constitutional dimension only if it results in the defendant's
loss of exculpatory evidence"); Horne v. Commonwealth, 230 Va.
512, 518-19, 339 S.E.2d 186, 191 (1986) ("[o]nly in a situation
where the delay in taking a suspect before a magistrate resulted
in the loss of exculpatory evidence have we concluded that the
defendant's due process rights were violated and reversed his
conviction"); Holt v. City of Richmond, 204 Va. 364, 368, 131
S.E.2d 394, 397 (1963) (stating that failure to follow the
statute's procedure will not necessarily result in invalidating
the conviction); McHone v. Commonwealth, 190 Va. 435, 444, 57
S.E.2d 109, 114 (1950) (stating that an officer's procedural
error should not deprive the Commonwealth of enforcing penal laws
unless the error invades the defendant's constitutional rights);
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Winston v. Commonwealth, 188 Va. 386, 396, 49 S.E.2d 611, 616
(1948) (reversing because, as a result of his illegal detention,
the defendant was forever deprived of material and possibly
exculpatory evidence); see also Thompson v. Commonwealth, 10 Va.
App. 117, 122, 390 S.E.2d 198, 202 (1990) (finding that an arrest
in violation of a state statute does not require that a
confession obtained thereafter be suppressed).
Undeniably, Jones's probable cause determination did not
adhere to the procedure set forth in Code § 19.2-82 because
Officer Henderson did not take Jones before a magistrate "who
. . . proceed[ed] to examine . . . [Henderson] under oath." The
two did not appear together before the magistrate. While this
statutory violation differs from the delay or procedural
irregularities in the foregoing cases, the procedural violation
here similarly does not constitute reversible error because it
did not deny Jones due process of law. The procedural violation
alone of Code § 19.2-82 is not reversible error unless it results
in infringement of a constitutional right.
The Fourth Amendment requires that after a warrantless
arrest and before a suspect is subject to extended pretrial
custody, a judicial officer must make an informal determination
of probable cause. See Gerstein v. Pugh, 420 U.S. 103, 113-14
(1975). However, this constitutional requirement does not
mandate a personal appearance of the accused at the probable
cause determination and certainly does not require that the
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accused and arresting officer appear together before the
magistrate. See King v. Jones, 824 F.2d 324, 326-27 (4th Cir.
1987).
The post-arrest Gerstein v. Pugh hearing is
required to fulfill the same function for
suspects arrested without warrants as the
pre-arrest probable cause hearing fulfills
for suspects arrested with warrants. One who
has had an arrest warrant issued before his
arrest has had no opportunity to appear
physically before the issuing magistrate
during the probable cause determination.
There is likewise no reason to require such
an appearance at the post-arrest probable
cause determination.
Id.
Despite no constitutional requirement that an accused appear
personally at the probable cause hearing or that the arresting
officer and accused appear together before a magistrate, the
General Assembly adopted those requirements when it enacted Code
§ 19.2-82. The salutary purpose of this provision is to
facilitate the magistrate's probable cause determination by
having the accused, who is required to be brought "forthwith"
before a magistrate, and the arresting officer appear at the same
time in order to avoid unnecessary delay and any confusion
arising from a magistrate's piecemeal inquiry. Contrary to
Jones's claim and the Town of Marion's concurrence, the provision
of Code § 19.2-82 that arresting officer and accused appear
together does not require that the magistrate's probable cause
determination be an adversarial hearing.
Jones makes no claim that Henderson's failure to bring him
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before the magistrate deprived him of exculpatory evidence. He
claims, however, that compliance with the statutory requirement
of bringing him before the magistrate was a critical part of the
evidentiary probable cause determination and that the
magistrate's opportunity to observe him was "even more necessary"
because "the alleged amount of alcohol and the accused's demeanor
[were] important aspects of the case."
The record shows that Jones was in the presence of the
magistrate briefly when the breathalyzer operator gave the
magistrate the breathalyzer test results. However, we need not
determine whether the accused's brief presence before the
magistrate was sufficient to comply with the statutory
requirement because Jones has failed to show that the omission
prevented him from obtaining evidence or was otherwise
prejudicial to him. The record establishes that an officer
administered a breathalyzer test shortly after Jones arrived at
the police station and made the result available to the
magistrate immediately thereafter. Jones has failed to show that
the procedural irregularity deprived him of exculpatory evidence
or was otherwise prejudicial to him.
Accordingly, the trial court's conviction is affirmed.
Affirmed.
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