COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Baker, Benton, Coleman,
Willis, Elder, Bray, Fitzpatrick and Overton
Argued at Richmond, Virginia
SCOTT ALLEN CHARLES
OPINION BY
v. Record No. 2180-94-2 JUDGE LARRY G. ELDER
SEPTEMBER 10, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AMELIA COUNTY
Thomas V. Warren, Judge
G. Barton Chucker (Chucker & Reibach, on
brief), for appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Scott Allen Charles (appellant) appeals his conviction for
operating a motor vehicle after illegally consuming alcohol under
the age of twenty-one, in violation of Code § 18.2-266.1.
Appellant contends: (1) the trial court erred in finding that
his blood alcohol test, administered one hour after his arrest,
established a presumption of his blood alcohol content when he
was operating his motor vehicle; (2) the trial court improperly
denied his proffer of evidence meant to explain why he performed
poorly on field sobriety tests; and (3) the General Assembly's
use of the words "illegally consuming alcohol" in Code
§ 18.2-266.1(A) required the Commonwealth to prove the source of
the alcohol he consumed. Because the trial court committed no
error, we affirm appellant's conviction.
I.
FACTS
On July 23, 1994, at 2:14 a.m., Deputy W. P. Jones of the
Amelia County Sheriff's Office stopped a vehicle driven by
appellant. The stop occurred at an administrative roadblock.
Appellant admitted that he had consumed two beers and was under
age twenty-one. Appellant did not state when he had consumed the
alcohol or disclose the source of the alcohol he had obtained.
Jones arrested appellant for operating a motor vehicle after
illegally consuming alcohol under age twenty-one. Appellant did
not pass the field sobriety tests administered by Jones. At
least one hour after being arrested, appellant underwent a blood
alcohol test. The Commonwealth introduced the certificate of
analysis, which showed that appellant's blood alcohol level
registered at .02 percent at the time the test was administered.
Appellant was tried in the Circuit Court of Amelia County on
October 5, 1994, for violating Code § 18.2-266.1. Appellant
argued that the Commonwealth had to introduce evidence that his
blood alcohol level was .02 percent at the time he operated his
vehicle. The trial court rejected this argument. The trial
court also refused to allow appellant to proffer evidence as to
why he failed his field sobriety tests, reasoning that such
evidence was irrelevant in light of the statutory language. The
trial court also ruled that the Commonwealth did not need to
prove that the alcohol was consumed illegally. The trial court
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found appellant guilty as charged.
II.
PRESUMPTION OF ALCOHOL CONCENTRATION
Appellant argues that the trial court erred in applying a
presumption that his blood alcohol level one hour after operating
the vehicle was the same as when he operated the vehicle. We
disagree.
Neither this Court nor the Supreme Court has addressed the
issue of whether Code § 18.2-266.1 creates a rebuttable
presumption that a defendant's blood alcohol content while
driving was the same as indicated by the results of a
subsequently administered test. However, based on Davis v.
Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989), and its
progeny, we hold that Code § 18.2-266.1 creates such a
presumption. Code §§ 18.2-266.1 1 and 18.2-266(i), 2 which contain
1
Code § 18.2-266.1(A) states:
It shall be unlawful for any person
under the age of twenty-one to operate any
motor vehicle after illegally consuming
alcohol. Any such person with a blood
alcohol concentration of 0.02 percent or more
by weight by volume or 0.02 grams or more per
210 liters of breath but less than 0.08 by
weight by volume or less than 0.08 grams per
210 liters of breath as indicated by a
chemical test administered as provided in
this article shall be in violation of this
section.
2
Code § 18.2-266 states "[i]t shall be unlawful for any
person to drive or operate any motor vehicle, engine or train (i)
while such person has a blood alcohol concentration of 0.08
percent or more . . . ."
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similar language, each make it "unlawful" for a driver to operate
a motor vehicle while the driver's blood alcohol content is at or
above a certain level. In Davis, this Court held that Code
§ 18.2-266(i) creates a rebuttable presumption "that the blood
alcohol concentration while driving was the same as indicated by
the results of the subsequent test." 8 Va. App. at 300, 381
S.E.2d at 16. See also Lemond v. Commonwealth, 19 Va. App. 687,
692, 454 S.E.2d 31, 34 (1995); Kehl v. Commonwealth, 15 Va. App.
602, 605, 426 S.E.2d 127, 129 (1993). We hold that this logic
3
applies with equal force to Code § 18.2-266.1.
III.
PROFFER OF EVIDENCE
As this Court has stated in cases involving prosecutions
under Code § 18.2-266(i), a defendant may rebut the presumption
that the blood alcohol concentration measurement accurately
reflected the defendant's blood alcohol concentration at the time
of driving. Commonwealth v. Ayers, 17 Va. App. 401, 404, 437
S.E.2d 580, 582 (1993); Lemond, 19 Va. App. at 693, 454 S.E.2d at
3
Appellant also contends that Code § 18.2-269, entitled,
"Presumptions from alcohol content of blood," applies to Code
§ 18.2-266(ii) but does not apply to Code § 18.2-266.1. While
this assertion is accurate, it does not affect the issue at hand.
Code § 18.2-266(ii) punishes offenders who drive under the
influence of alcohol and utilizes Code § 18.2-269's presumptions
to prove intoxication. In contrast, Code § 18.2-266.1 does not
concern itself with offenders who drive under the influence.
Instead, Code § 18.2-266.1 punishes offenders whose blood alcohol
content measures between .02 and .08 percent. Therefore, we hold
that Code § 18.2-269's presumptions are irrelevant to proving a
violation of Code § 18.2-266.1.
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35. Thus, in cases involving prosecutions under Code
§ 18.2-266.1, "[a] defendant . . . may introduce evidence to show
that, despite his blood alcohol concentration of at least 0.10
percent on a subsequently administered test, his blood alcohol
concentration at the time of driving was less than 0.10 percent."
Ayers, 17 Va. App. at 404, 437 S.E.2d at 582. A defendant "may
challenge the test results by competent evidence, such as, for
example, that he had not consumed enough alcohol in the relevant
time to reach the level indicated by the chemical test results."
Davis, 8 Va. App. at 300, 381 S.E.2d at 16. However, evidence
tending to prove that the defendant was not under the influence,
such as adequate performance on field sobriety tests, is
irrelevant and inadmissible. Id. In this case, therefore, the
trial court did not err in refusing to allow appellant to explain
his physical condition and his poor performance on the field
sobriety tests.
IV.
PROOF OF "ILLEGAL CONSUMPTION"
For the reasons stated in Mejia v. Commonwealth, ___ Va.
App. ___, ___ S.E.2d ___ (1996) (en banc), we hold that the trial
court did not err in denying appellant's motion to strike the
evidence, which was grounded on the Commonwealth's failure to
prove that his consumption of alcohol was illegal.
Based on the foregoing, we affirm appellant's conviction.
Affirmed.
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Benton, J., dissenting.
For the reasons stated in my dissent to Davis v.
Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989), I would hold
that Code § 18.2-266.1 does not create a presumption "that the
blood alcohol concentration while driving was the same as
indicated by the results of the subsequent test." 8 Va. App. at
300, 381 S.E.2d at 16. Until the General Assembly enacts a
rebuttable presumption for Code § 18.2-266.1, "I find nothing in
either the text or logic of [Code § 18.2-266.1] that leads me to
conclude the General Assembly intended anything other than that
guilt would be proved beyond a reasonable doubt according to the
normal processes of human reasoning and experience." Id. at 303,
381 S.E.2d at 17-18 (Benton, J., dissenting).
Because I do not believe Code § 18.2-266.1 creates a
rebuttable presumption, I would find the trial judge erred in
barring evidence of Charles' physical condition and performance
on field sobriety tests. The Commonwealth administered the
breathalyzer test an hour after the officer stopped Charles.
During this one hour period, the level of Charles' intoxication
may have fluctuated. Evidence of his physical condition at the
time of the stop was probative of whether he operated the vehicle
when his breath contained .02 grams or more of alcohol per 210
liters of breath. Where the statute bars a person from operating
a vehicle with a certain bodily alcohol content and the test is
not performed until after that person ceases to operate the
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vehicle, then evidence of the driver's physical condition may be
probative of the driver's level of intoxication when operating
the vehicle. Thus, I would also hold that the trial judge erred
in refusing to admit the evidence of Charles' physical condition.
The statute does not create a rebuttable presumption regarding
the scientifically measured alcohol level.
I dissent from Part IV for the reasons stated in my dissent
to Mejia v. Commonwealth, Va. App. , S.E.2d
(1996)(en banc). Code § 18.2-266.1(A) requires the Commonwealth
to prove the accused "illegally consum[ed] alcohol." The
Commonwealth introduced no evidence concerning the circumstances
of Charles' consumption of alcohol. Therefore, the evidence was
insufficient to support a conviction.
Accordingly, I would reverse Charles' conviction.
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