Smith v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Frank
Argued at Alexandria, Virginia

PATRICIA A. SMITH
OPINION BY
v. Record No. 0887-99-4 JUDGE LARRY G. ELDER
APRIL 18, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Kathleen H. MacKay, Judge

Mark J. Yeager for appellant.

Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Patricia A. Smith (appellant) appeals from her bench trial

conviction for driving while intoxicated in violation of Code

§ 18.2-266, her third such offense within five years. On

appeal, she contends the trial court erred in admitting evidence

of her blood alcohol concentration because her arrest was

invalid and, therefore, did not support the taking of the sample

under Virginia's implied consent law. We hold that appellant's

arrest was valid because it occurred at the scene of the

accident within the meaning of Code § 19.2-81, and we affirm her

conviction.
 I.

FACTS

On appeal of a criminal conviction, we view the facts in

the light most favorable to the Commonwealth. See Higginbotham

v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

So viewed, the Statement of Facts filed in this case indicates

that on April 8, 1998, appellant drove her car from the

eastbound lane of Manchester Boulevard in Fairfax County onto

the curb, striking a street sign at the intersection of

Manchester Boulevard and Manchester Lakes Drive. Appellant

backed up but hit the sign again. She eventually returned to

the roadway, turned right onto Manchester Lakes Drive, and

brought her car to a stop in front of a townhouse located in a

cul-de-sac about 100 yards away. Uncontradicted evidence

established that the location where appellant brought her

vehicle to a stop was visible from the intersection where the

downed sign was located.

Off-duty Sheriff's Deputy Wrenn observed appellant's

vehicle leave the roadway. He spoke briefly to appellant before

she pulled away from the sign, asking her if she was hurt. She

did not respond. At the same time, a tow truck passed Wrenn and

offered assistance. Wrenn told the driver to follow appellant's

car. The tow truck driver followed appellant to the spot where

she parked, pulled in behind appellant and took her keys. Wrenn

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followed appellant and the tow truck on foot, catching up with

them about a minute later.

Deputy Wrenn did not identify himself to appellant as a law

enforcement officer and did not exercise his authority as an

officer because Officer Lucas, responding to a citizen complaint

that a vehicle had felled the sign, arrived on the scene quickly

thereafter. Lucas said appellant bore no visible injuries but

appeared "out of it"--her eyes were glazed, she had a slight

odor of alcohol about her person, she "took time to process

things," her speech was "slow and methodical," and her movements

were "slow and uneasy." She admitted having consumed alcohol

"earlier." Lucas arrested appellant for driving while

intoxicated and misdemeanor "Hit and Run." Subsequent blood

alcohol concentration testing showed a level of .26%.

The Commonwealth disposed of the hit and run charge by

nolle prosequi. At trial on the charge of driving while

intoxicated, appellant objected to admission of the blood

alcohol test results into evidence on the ground that Officer

Lucas lacked authority to make the warrantless arrest because

the misdemeanor offense did not occur in Lucas' presence and

because Lucas did not arrest her at the scene of the accident.

The trial court denied the motion, ruling that appellant's

striking the sign, fleeing the scene and parking her vehicle at

the scene of the arrest were "all part of the same transaction."

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Appellant made the same argument in her motions to strike and in

a subsequent motion to set aside her conviction.

II.

ANALYSIS

Pursuant to Code § 19.2-81, a police officer "may arrest,

without a warrant, any person who commits any crime in the

presence of the officer and any person whom he has reasonable

grounds or probable cause to suspect of having committed a

felony not in his presence." Ordinarily, an officer may effect

a warrantless arrest for a misdemeanor only if the offense was

committed in his presence. See Durant v. City of Suffolk, 4 Va.

App. 445, 447-48, 358 S.E.2d 732, 733-34 (1987). The statute

provides certain exceptions, including one for automobile

accidents involving misdemeanors:

[An] officer may, at the scene of any
accident involving a motor vehicle, . . . or
at any hospital or medical facility to which
any person involved in such accident has
been transported, . . . on any of the
highways . . . of the Commonwealth, upon
reasonable grounds to believe, based upon
personal investigation, including
information obtained from eyewitnesses, that
a crime has been committed by any person
then and there present, apprehend such
person without a warrant of arrest.

Code § 19.2-81 (emphasis added).

Code § 18.2-268.2, Virginia's "implied consent" law,

provides as follows:

Any person . . . who operates a motor
vehicle upon a highway . . . in this

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 Commonwealth shall be deemed thereby, as a
condition of such 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,
drug, or both alcohol and drug content of
his blood, if he is arrested for violation
of § 18.2-266 or § 18.2-266.1 or of a
similar ordinance within two hours of the
alleged offense.

Code § 18.2-268.2(A). If the blood or breathalyzer test reveals

a blood alcohol concentration of .08% or more, the Commonwealth

is entitled to a rebuttable presumption that the person was

intoxicated. See Code § 18.2-269; Castillo v. Commonwealth, 21

Va. App. 482, 486, 465 S.E.2d 146, 148 (1995). However, for an

arrestee to be deemed to have given implied consent under Code

§ 18.2-268.2, the arrest must have been lawful. See Durant, 4

Va. App. at 448-49, 358 S.E.2d at 734. If the arrest is not

lawful, consent for blood alcohol testing is not implied, and

the results of any such test are not admissible for the purpose

of providing a rebuttable presumption of intoxication. See

Castillo, 21 Va. App. at 487-93, 465 S.E.2d at 148-52; Durant, 4

Va. App. at 448-49, 358 S.E.2d at 734. Therefore, because the

misdemeanor offenses for which appellant was arrested were not

committed in the presence of the arresting officer, 1 the

1
"'An offense is committed within the presence of an
officer, within the meaning of [Code § 19.2-81], when he has
direct personal knowledge, through his sight, hearing, or other
senses that it is then and there being committed.'" Durant, 4
Va. App. at 447, 358 S.E.2d at 733 (quoting Galliher v.
Commonwealth, 161 Va. 1014, 1021, 170 S.E. 734, 736 (1933)).
Here, although the offense was committed in the presence of

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warrantless arrest was lawful and the certificate admissible

only if the arrest occurred "at the scene of [the] accident."

Code § 19.2-81.

Appellant contends that her arrest did not occur at the

scene of the accident within the meaning of Code § 19.2-81. 2 The

word "scene" is not defined in the statute, and we have not

previously had occasion to consider the scope of an officer's

authority to make a warrantless arrest "at the scene of any

accident." Cf. Duck v. Commonwealth, 8 Va. App. 567, 573, 383

S.E.2d 746, 749 (1989) (noting that record was insufficient for

court to determine whether trooper's action in stopping accused,

Deputy Wrenn, Wrenn did not make the arrest. Lucas did not
observe appellant's commission of the offense, and the
observations of Wrenn could not be imputed to Lucas for purposes
of permitting Lucas to make an arrest for an offense committed
in his presence under Code § 19.2-81. See Penn v. Commonwealth,
13 Va. App. 399, 402-06, 412 S.E.2d 189, 190-93 (1991), aff'd
per curiam, 244 Va. 218, 420 S.E.2d 713 (1992).
2
Appellant contends that the phrase, "the scene of any
accident," in Code § 19.2-81 should be construed as co-extensive
with the phrase, "the scene of the accident," in Code
§ 46.2-894, Virginia's "hit-and-run" statute. Because
appellant's hit-and-run charge was disposed of by nolle prosequi
and never considered by the court, we see no reason to analyze
the meaning of the challenged phrase in the hit-and-run statute.
We note, however, that the hit-and-run statute contains language
significantly different from the statute under which appellant
was convicted. Code § 46.2-894 requires a driver involved in an
accident to "stop as close to the scene of the accident as
possible without obstructing traffic," and the purpose of the
statute is to "facilitate accident investigation and to preserve
public order." Johnson v. Commonwealth, 14 Va. App. 769, 771,
418 S.E.2d 729, 731 (1992). Code § 19.2-81, by contrast,
permits an officer to make a warrantless arrest of a motor
vehicle driver, under certain conditions, "at the scene of any
accident."

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whom she saw leave accident and travel as passenger in an

uninvolved vehicle to a location less than half a mile away,

"and 'escorting' him back to the scene of the accident

constituted an arrest away from the scene of the accident,

exceeding her authority under Code § 19.2-81 to make a

warrantless arrest").

We are guided by principles of statutory construction.

Although penal statutes should be strictly construed, this

principle does not "entitle[] [an accused] to a favorable result

based upon an unreasonably restrictive interpretation of the

statute." Ansell v. Commonwealth, 219 Va. 759, 761, 250 S.E.2d

760, 761 (1979). "[A] statute should be read to give reasonable

effect to the words used 'and to promote the ability of the

enactment to remedy the mischief at which it is directed.'"

Mayhew v. Commonwealth, 20 Va. App. 484, 489, 458 S.E.2d 305,

307 (1995) (quoting Jones v. Conwell, 227 Va. 176, 181, 314

S.E.2d 61, 64 (1984)). A statute should, if possible, be

construed to "'effect rather than defeat a legislative purpose

evident from the history of the legislation.'" Scott v. Scott,

16 Va. App. 815, 819, 433 S.E.2d 259, 262 (1993) (quoting

Ambrogi v. Koontz, 224 Va. 381, 389, 297 S.E.2d 660, 664

(1982)).

Here, it is evident that the legislature intended for the

provisions of Code § 19.2-81, inter alia, to facilitate the

timely arrest of persons in motor vehicle accidents involving

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alcohol or other intoxicants so that they may be tested under

the implied consent law to determine their blood alcohol

content. Code § 19.2-81 currently provides that an officer may,

under certain circumstances, effect a warrantless arrest of a

person "at the scene of any [motor vehicle] accident . . . or at

any hospital or medical facility to which any person involved in

such accident has been transported" if the officer has

"reasonable grounds to believe" the person has committed a

crime.

Prior to 1985, the statute permitted arrest "at the scene

of any accident" only. See 1985 Va. Acts ch. 507 (codified at

§ 19.2-81 (1983 Repl. Vol. & Supp. 1985)). Under that version

of the statute, the Virginia Supreme Court held that the

hospital to which a driver injured in an accident was taken was

not an extension of the accident scene. See Thomas v. Town of

Marion, 226 Va. 251, 254, 308 S.E.2d 120, 122 (1983). As a

result, it held that the officer's warrantless arrest of the

driver at the hospital was invalid and that the implied consent

law did not validate the blood alcohol analysis conducted after

arrest. See id. In 1985, the legislature expanded the scope of

Code § 19.2-81 to validate a post-accident arrest made at a

hospital or medical facility, see 1985 Va. Acts ch. 507,

implicitly acknowledging the need for prompt testing for

intoxicants in certain accident cases.

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 A Delaware Superior Court has held, under a similar

statute, that determining whether a warrantless arrest occurred

"at the scene of a motor vehicle accident" is "a fact-based

question whose answer will vary from case to case." State v.

Rizzo, 634 A.2d 392, 400 (Del. Super. Ct. 1993) (interpreting

Del. Code Ann. tit. 21, § 701). That court held that Delaware's

statute permits a warrantless arrest if it occurs "before the

suspect has, by any reasonable temporal and/or lineal criteria,

left the scene of a motor vehicle accident." Id. (citations

omitted) (emphasis added). Although we do not adopt the precise

formulation used in Rizzo, we find the Delaware standard

instructive.

A similar principle already well-established in Virginia

law is the doctrine of res gestae as interpreted to aid in

application of the felony-murder statute. See Haskell v.

Commonwealth, 218 Va. 1033, 1043-44, 243 S.E.2d 477, 483 (1978).

Res gestae, a principle generally associated
with an exception to the hearsay evidence
rule, pertains not only to what is said but
to what is done as well. The res gestae of
the underlying crime begins where an
indictable attempt to commit the felony is
reached and ends where the chain of events
between the attempted crime or completed
felony is broken.

Berkeley v. Commonwealth, 19 Va. App. 279, 286, 451 S.E.2d 41,

45 (1994) (citation omitted).

Applying res gestae to felony-murder, the Virginia Supreme

Court has held that "the felony-murder statute applies where the

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killing is so closely related to the felony in time, place, and

causal connection as to make it a part of the same criminal

enterprise." Haskell, 218 Va. at 1043-44, 243 S.E.2d at 483.

Haskell involved an unsuccessful robbery attempt. The robbers

beat the victim and held him down but found no money on his

person. See id. at 1036, 243 S.E.2d at 479. The robbers

attempted to leave the scene, but the victim tried to prevent

their escape and was shot and killed by one of the robbers other

than Haskell. See id. at 1037, 243 S.E.2d at 479. The Court

rejected Haskell's argument that the killing did not occur in

the commission of a felony. It held the evidence established

that "the killing occurred within five feet of the spot where

[the victim] was beaten and searched, and within moments after

the victim had regained his feet." Id. at 1043, 243 S.E.2d at

483. Because the killing was so closely related to the robbery

in "time, place, and causal connection" and "the two crimes were

inextricably interwoven," the Court upheld Haskell's conviction

for felony-murder. See id.

We hold that the time and place elements of the res gestae

doctrine are applicable by analogy to a court's determination

whether a warrantless arrest occurs "at the scene of any

accident" pursuant to Code § 19.2-81. "The continuation of

events 'covered by the term res gestae depends upon the

circumstances of each particular case.'" Berkeley, 19 Va. App.

at 286, 451 S.E.2d at 45 (quoting Cluverius v. Commonwealth, 81

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Va. 787, 805 (1886) (citation omitted)). Whether an arrest

occurred at the scene of an accident, like the question whether

a murder occurred in the commission of a felony, depends upon

whether the relevant factors are linked by time and place,

Haskell, 218 Va. at 1043-44, 243 S.E.2d at 483, or "by any

reasonable temporal and/or lineal criteria," Rizzo, 634 A.2d at

400.

In light of the above, we hold that appellant was arrested

at the scene of the accident within the meaning of Code

§ 19.2-81. The evidence established that the arresting officer

arrived at the intersection at which the accident occurred

within minutes of its occurrence. From that intersection, he

could see the tow truck and the house where appellant's vehicle

was parked. He then proceeded directly to that location, which

was about 100 yards away, arriving twenty to thirty seconds

later. Officer Lucas arrived on the scene so quickly that

Deputy Sheriff Wrenn, the off-duty officer who observed the

accident, found it unnecessary to exercise his authority. Under

a res gestae analysis of time and place, we hold that Officer

Lucas' arrest of appellant--at this location and so close in

time to the accident--met the lineal and temporal requirements

necessary to constitute an arrest at the scene of the accident.

For these reasons, we affirm appellant's conviction.

Affirmed.

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