Castillo v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Annunziata
Argued at Norfolk, Virginia

ROBYN LYNN CASTILLO
OPINION BY
v. Record No. 2444-94-1 JUDGE LARRY G. ELDER
DECEMBER 29, 1995
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
William F. Rutherford, Judge

James O. Broccoletti (J. F. Hoen; Zoby &
Broccoletti, P.C., on brief), for appellant.

Kathleen B. Martin, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

Robyn L. Castillo (appellant) appeals her convictions for

driving under the influence of alcohol in violation of Code

§ 18.2-266 and involuntary manslaughter in violation of Code

§ 18.2-36.1(A). Appellant asserts (1) the trial court erred in

admitting into evidence the results of her breath alcohol

analysis, although she was not arrested for driving under the

influence within two hours of the alleged offense, as required by

Code § 18.2-268.2; and (2) the evidence was insufficient to

support her involuntary manslaughter conviction. Because the

trial court erroneously admitted the certificate of analysis and

improperly relied on the test results' statutory presumption of

intoxication, we reverse both convictions.
 I.

FACTS

Appellant was driving an Isuzu Trooper on October 1, 1993 on

Shore Drive in Norfolk. At approximately 7:05 a.m., Leila Mae

Dossey was crossing Shore Drive when appellant's vehicle struck

her. The impact threw Dossey over the hood of the vehicle and

onto the windshield before Dossey hit a sign post and fell to the

ground. Dossey was pronounced dead at the scene.
One eyewitness, David Mason, saw appellant's vehicle strike

Dossey, brake "a little bit" without skidding, change lanes as

Dossey rolled off the hood, and then continue down the street.

Another eyewitness, Omar Capodiferro, was driving next to

appellant and witnessed appellant's vehicle immediately before it

struck Dossey, whom Capodiferro observed crossing the street.

There was no evidence of excessive speed or erratic driving other

than appellant's swerving in an attempt to avoid hitting the

victim.

Police located appellant after Capodiferro reported the

accident, and Detective Randy Million observed appellant walking

on a street near her parked vehicle. Million testified

appellant's speech was slurred, she smelled of alcohol, she was

"very unsteady" on her feet, her clothes were in disarray, and

her eyes were glassy and watery. Million arrested appellant on

the charge of "hit and run fatality" at 8:45 a.m.

Officer R.L. Burnette spoke with appellant at her vehicle,

2
where he advised her of her Miranda rights at approximately

9:05 a.m. Burnette smelled the strong odor of alcohol about

appellant, saw that her stockings were torn, and noticed her

chest was visible through her clothing. Officer Burnette

informed appellant of Code § 18.2-268.2, the implied consent law,

at 9:07 a.m.

Appellant supplied the officers with various versions of her

whereabouts that day and the prior evening. Appellant admitted

she visited three bars the prior evening and consumed four White

Russian mixed-alcoholic beverages. Appellant denied any

involvement in the hit and run incident.
Police transported appellant to the police station for the

administration of a breath alcohol test. Appellant refused to

allow Officer Jim Murphy, a licensed breath test operator, to

administer the breathalyzer test, as she continued to cough

despite his contrary instructions. When a magistrate informed

appellant she would be charged with refusal to take the

breathalyzer test if she did not cooperate, appellant acquiesced

to a breathalyzer test at 10:05 a.m. Appellant's blood alcohol

level registered at .11 percent.

Police did not arrest appellant for driving under the

influence of alcohol or involuntary manslaughter; rather she was

directly indicted for these offenses on March 2, 1994, five

months after they occurred. A bench trial was held. Appellant

objected to the admission of the breathalyzer test results,

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asserting that the police did not arrest her for driving under

the influence within two hours of the offense, as required by

Code § 18.2-268. Appellant also argued she never voluntarily

chose to undergo a breathalyzer test instead of a blood test.

The trial court overruled the objection and admitted into

evidence the certificate of analysis and the test operator's

testimony. The trial court also overruled appellant's motion to

strike the evidence and found appellant guilty of both offenses.
II.

USE OF BREATHALYZER TEST RESULTS

Virginia's "implied consent" law, as it existed at the time

of the offense, provided in pertinent part:

(A) Any person . . . who operates a motor vehicle upon
a highway . . . in this 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 [a] violation of
§ 18.2-266 [driving under the influence] . . . or of a
similar ordinance within two hours of the alleged
offense.

Code § 18.2-268.2(A)(emphasis added). See Wendel v.

Commonwealth, 12 Va. App. 958, 961, 407 S.E.2d 690, 692

(1991)("One safeguard . . . requires that an accused be arrested

within two hours of the alleged offense in order for the test

results to be admissible at trial"). If the blood or

breathalyzer test reveals a particular level of blood alcohol

content (.10 percent at the date of the instant offense), the

4
Commonwealth is entitled to a rebuttable presumption that the

defendant was intoxicated. Code § 18.2-269; Overbee v.

Commonwealth, 227 Va. 238, 243, 315 S.E.2d 242, 244 (1984);

Bowman v. Commonwealth, 201 Va. 656, 662, 112 S.E.2d 887, 891

(1960).

The Commonwealth concedes that because police failed to

arrest appellant for driving under the influence of alcohol

within two hours of the accident, the certificate of analysis was

inadmissible at trial. However, the Commonwealth asserts that

other evidence presented, including the test operator's

testimony, proved appellant's intoxication, and, therefore, the

introduction of the certificate was harmless error. The

Commonwealth also contends exigent circumstances justified the

administration of the breathalyzer test. We disagree with the

Commonwealth.
A.

HARMLESS ERROR

Three cases guide our analysis of the harmless error issue:
Thomas v. Town of Marion, 226 Va. 251, 308 S.E.2d 120 (1983);

Overbee v. Commonwealth, 227 Va. 238, 315 S.E.2d 242 (1984); and

Durant v. City of Suffolk, 4 Va. App. 445, 358 S.E.2d 732 (1987),

all decided under former Code § 18.2-268, the predecessor to

current Code § 18.2-268.2.

In Thomas, the defendant was involved in a motor vehicle

accident and was shortly thereafter interrogated at the hospital.

5
A police officer noticed that the defendant smelled strongly of

alcohol, and the defendant admitted having consumed alcoholic

beverages earlier that day. Thomas, 226 Va. at 253, 308 S.E.2d

at 121. Police served an arrest warrant on the defendant three

hours after the accident, at which time the defendant submitted

to a breath test. His blood alcohol content registered .17

percent. Id. at 253, 308 S.E.2d at 121-22. The Commonwealth

introduced the test results at the defendant's jury trial over

his objection, and he was convicted of driving under the

influence of alcohol. Id. at 252-53, 308 S.E.2d at 121-22.

The Supreme Court reversed the conviction, stating, "[s]ince

the arrest was untimely, the defendant is not deemed to have

consented to the testing of his breath under the 'implied

consent' law." Id. at 254, 308 S.E.2d at 122. The Court held

receipt of the certificate into evidence was improper and

recognized the prejudicial effect the rebuttable presumption of

intoxication had on the fact finder.

Because it is probable the jury attached great
weight to the incriminating information in the
certificate, admission of the exhibit was reversible
error. Therefore, we do not reach the question [of]
whether other evidence of intoxication, standing alone,
is sufficient to sustain the drunk driving conviction.

Id.

The next year, the Supreme Court visited the same issue when

it decided Overbee. In Overbee, police found the defendant

parked in an emergency lane on a highway at 9 p.m. 227 Va. at

6
240, 315 S.E.2d at 243. A police officer smelled alcohol on the

defendant's breath and saw that his eyes were red; the defendant

stated that he had consumed one beer. Id. After police arrested

the defendant at 9:13 p.m., they administered a breathalyzer

test, which showed the defendant's blood alcohol content to be

.16 percent. Id. at 241, 315 S.E.2d at 243. The defendant

maintained he consumed no alcohol prior to parking his vehicle

but had consumed wine only after stopping the vehicle. The

defendant moved to suppress the breathalyzer test results and the

test operator's testimony on the ground that he had not been

arrested within two hours of "operating" a vehicle while under

the influence of alcohol. The trial court denied the motion, and

the jury found the defendant guilty of driving under the

influence of alcohol. Id. at 242, 315 S.E.2d at 243.

The Supreme Court reversed the defendant's conviction,

holding that he was not operating his truck when arrested.

Therefore, the Court held that the test certificate was

inadmissible. Id. at 242, 315 S.E.2d at 244. The Court

recognized, "[i]f the certificate of analysis of the breath test

were admissible, the Commonwealth would be entitled to a

rebuttable presumption that [the defendant] was intoxicated,

since his blood-alcohol content was greater than 0.10%." Id. at

243, 315 S.E.2d at 244 (citing former Code § 18.2-269(3)). The

Overbee Court then attempted to determine whether the defendant's

guilt or innocence could be "determined from the other evidence

7
of his condition at the time of the alleged offense." Id. at

244, 315 S.E.2d at 244-45. The Court concluded it could not

answer this question, which mandated a reversal of the case.

We cannot say that the evidence, exclusive of the
certificate of analysis, was insufficient as a matter
of law to support [the defendant's] conviction. Nor
can we say that the evidence, without the certificate,
was so overwhelming as to render harmless the error in
admitting the certificate.

Id. at 245, 315 S.E.2d at 245. See also Essex v. Commonwealth,

228 Va. 273, 286, 322 S.E.2d 216, 223 (1984)(stating that where a

blood alcohol test was not conducted in accordance with former

Code § 18.2-268, the test results could be used as probative

evidence of intoxication without a statutory presumption of
intoxication).

Finally, in Durant, this Court reversed the defendant's

conviction for driving under the influence of alcohol after

employing the harmless error analysis used by the Supreme Court

in Overbee. In Durant, which was a bench trial, the facts showed

that the defendant was "swerving all over the road," as a police

officer followed him for "five or six miles." When taken into

custody, the defendant had a strong odor of alcohol about his

person, his speech was "'confused,'" and "'his balance and

walking ability were somewhat vague.'" 4 Va. App. at 446-47, 358

S.E.2d at 733. In Durant, this Court determined, for reasons

unimportant to the instant case, that the defendant was not

arrested for driving under the influence of alcohol pursuant to a

8
warrant or a valid exception to the warrant requirement. Id. at

448, 358 S.E.2d at 734. Therefore, the defendant was not legally

arrested within two hours of the alleged offense and was not

bound under the statute to submit to the breathalyzer test. "The

result of the breathalyzer test administered to [the defendant]

should not have been admitted in evidence at his trial." Id. at

449, 358 S.E.2d at 734 (footnote omitted).

The Court also considered:
whether the admission of the breathalyzer test
constituted harmless error. We are unable to say what
effect the breathalyzer evidence had on the trial
court's decision; therefore, we cannot find as a matter
of law that the result would not have been different if
such evidence had not been considered by the trial
court. The error was not harmless . . . .

Id. (emphasis added).

Under the facts of this case, we adopt the reasoning

expressed by this Court in Durant. We conclude, after examining

the record, that we are unable to determine whether the trial

court applied Code § 18.2-269's rebuttable presumption of

intoxication to prove appellant's intoxication. While the

Commonwealth presented other independent evidence of appellant's

intoxication, "[w]e are unable to say what effect the

breathalyzer evidence had on the trial court's decision."
Durant, 1 4 Va. App. at 449, 358 S.E.2d at 734. Although in a
1
We recognize that the Supreme Court has also affirmed a
conviction for driving under the influence of alcohol, under a
harmless error analysis, without discussing the presumption of
intoxication that accompanies certain results. In Brooks v. City
of Newport News, 224 Va. 311, 295 S.E.2d 801 (1982), the Supreme

9
bench trial, "the trial judge is presumed to disregard

prejudicial or inadmissible evidence," Hall v. Commonwealth, 14

Va. App. 892, 902, 421 S.E.2d 455, 462 (1992)(en banc), this

presumption only controls "in the absence of clear evidence to

the contrary." Id. See Mason v. Commonwealth, 219 Va. 1091,

1098, 254 S.E.2d 116, 120, cert. denied, 444 U.S. 919 (1979);

Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291

(1977); Brown v. Commonwealth, 8 Va. App. 126, 133, 380 S.E.2d 8,

12 (1989); Cole v. Commonwealth, 16 Va. App. 113, 116, 428 S.E.2d
303, 305 (1993).

In this case, the trial court admitted the certificate after

ruling that the Commonwealth had complied with the implied

consent law. Subsequent to the certificate's admission, the

Commonwealth failed to offer evidence on the significance of the

test results in the certificate. Clear evidence therefore

Court held that introduction of the test results was in error.
However, the Court stated the "result of a breath analysis is but
auxiliary proof which may tend to corroborate evidence of the
objective symptoms" of intoxication. Id. at 316, 295 S.E.2d at
804. The Court also stated:

Under the facts and circumstances of
this case, the trial court's erroneous ruling
admitting the certificate was not fatal to a
conviction. The testimony at the trial
clearly showed that there was no room for
reasonable doubt about [the defendant's]
actual condition at the time of his arrest.
The evidence of his guilt was clear and
compelling, and the erroneous ruling of the
trial court was harmless.
Id. We note that the Supreme Court decided Brooks before Thomas
and Overbee.

10
implies that the trial court applied the statutory presumption of

intoxication; we cannot say from the facts and circumstances that

this error did not affect the verdict. Lavinder v. Commonwealth,

12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)(en banc).

Thus, we disagree with the Commonwealth's assertion that the

trial court's admission of the test results into evidence was

merely harmless error.

11
 B.

EXIGENT CIRCUMSTANCES

The Commonwealth argues that the breathalyzer test results

were admissible despite the Commonwealth's non-compliance with

the statute because exigent circumstances existed. In support of

its argument, the Commonwealth cites Bowman v. Commonwealth, 201

Va. 656, 112 S.E.2d 887 (1960)(decided under former Code

§ 18-75.1), and Tipton v. Commonwealth, 18 Va. App. 370, 444

S.E.2d 1 (1994). In Bowman, the defendant was involved in a car
accident. He was informed that he would be charged with driving

under the influence of alcohol and had a right to submit to a

test to determine his blood alcohol level. Bowman, 201 Va. at

657-58, 112 S.E.2d at 888-89. The defendant requested a blood

test and lapsed into a coma shortly thereafter, before his

arrest. The certificate of analysis, which showed the

defendant's blood alcohol level to be .26 percent, was introduced

at trial over his objection that he was not arrested within two

hours of the offense and the sample was taken before his arrest.

The trial judge found appellant guilty of driving under the

influence of alcohol. The Supreme Court affirmed the conviction

and approved the introduction of the test results, along with

trial court's use of the accompanying presumption of

intoxication, noting that "unusual circumstances caused [the

officer] to delay the arrest for humane reasons." Id. at 661,

112 S.E.2d at 891.

12
 The Commonwealth correctly asserts that Bowman allowed the

use of test results which were taken pursuant to the exigent

circumstances exception and allowed the statutory presumption to

be applied even where the Commonwealth presented no additional

evidence to explain the test results. However, Bowman was based

on "unusual circumstances" relating to "humane reasons"

benefitting the defendant, which the Supreme Court held justified

the delay in arresting the defendant.
Since Bowman, the Supreme Court has decided Thomas, Overbee,

and Essex. In Essex, the Supreme Court held that although the

defendant's blood alcohol test was not taken in accordance with

former Code § 18.2-268, the test results could be introduced as

"other relevant evidence" of drunk driving. 228 Va. at 286, 322

S.E.2d at 223. The Court wrote that while the test evidence was

probative, it:

raised no legal presumption of intoxication. Code
§ 18.2-269 expressly provides that the presumptions it
creates arise only when a blood-alcohol test is
conducted "in accordance with the provisions of [former
Code] § 18.2-268." The record of the pretrial hearing
shows, and the Attorney General concedes, that the
hospital test was not conducted in such manner. Yet,
the trial court, borrowing from the language of
§ 18.2-269(3), instructed the jury that "[i]f there was
at the time zero point 10 percent or more of alcohol in
the accused's blood it shall be presumed that the
accused was under the influence of alcoholic
intoxicants." Since the only evidence to support that
instruction was derived from the test performed at the
hospital, we hold that the instruction constituted
prejudicial error in the trial of the drunken driving
charge.

Id. (footnote omitted)(emphases added).

13
 In Tipton v. Commonwealth, this Court affirmed the

defendant's involuntary manslaughter conviction. The defendant

was involved in a fatal two-car accident and underwent a blood

alcohol test. The trial court recognized that the certificate of

the blood test analysis was inadmissible because no valid arrest

occurred within two hours after the accident. 18 Va. App. at

372, 444 S.E.2d at 2. However, the trial court found exigent

circumstances justified the taking of the defendant's blood. The

trial court allowed the Commonwealth to introduce the results of

the blood test through testimony of the chemist who performed the

test. Id. The certificate of analysis was not introduced, nor

was any presumption applied.

This Court held that the defendant's "alcohol blood reading

was properly obtained pursuant to the exigent circumstances

exception," not former Code § 18.2-268(B), as the delay necessary

to obtain a search warrant to obtain a blood sample for a blood

test may have resulted in the destruction of valuable evidence.
Id. at 373, 444 S.E.2d at 3. Importantly, the Commonwealth

presented independent expert testimony showing that the

defendant's blood alcohol content would cause a driver to

"experience a loss of information processing skills, diminished

tracking skills, some loss of peripheral vision, and slowed

reaction." Id. at 372-73, 444 S.E.2d at 2.

The Tipton case stands in sharp contrast to both Bowman and

the instant case. In Tipton, although the Commonwealth proved

14
appellant's intoxication with the aid of the test results, it did

so without the introduction of the certificate of analysis and

the accompanying statutory presumption. Instead, the

Commonwealth presented other independent testimony interpreting

the test results.

In this case, the Commonwealth never presented expert

testimony of the sort presented in Tipton to explain the

significance of the test results. Therefore, assuming without

deciding that exigent circumstances justified seizure of
2
appellant's person and the taking of her breath for analysis,
the Commonwealth nevertheless failed to introduce independent

evidence of the significance of the test results. Without such

evidence, we are unable to determine whether the trial court

improperly relied on the statutory presumption of intoxication.

III.

SUFFICIENCY OF EVIDENCE TO SUPPORT INVOLUNTARY MANSLAUGHTER

The trial court found appellant guilty of involuntary

manslaughter in violation of Code § 18.2-36.1, which stated at

the time of the offense, "[a]ny person who, as a result of
driving under the influence in violation of subdivision (ii),

(iii), or (iv) of § 18.2-266, unintentionally causes the death of

another person, shall be guilty of involuntary manslaughter."

2
The Commonwealth argues the dissipating nature of alcohol
in blood mandated that the police act quickly to preserve
evidence of the crime. See Tipton v. Commonwealth, 18 Va. App.
370, 374, 444 S.E.2d 1, 3 (1994).

15
Code § 18.2-36.1(A)(emphasis added). Code § 18.2-266 stated, at

the time of the offense:

It 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 .10
percent or more by weight by volume as indicated by a
chemical test administered as provided in this article,
(ii) while such person is under the influence of
alcohol, (iii) while such person is under the influence
of any narcotic drug or any other self-administered
intoxicant or drug of whatsoever nature, or any
combination of such drugs, to a degree which impairs
his ability to drive or operate any motor vehicle,
engine or train safely, or (iv) while such person is
under the combined influence of alcohol and any drug or
drugs to a degree which impairs his ability to drive or
operate any motor vehicle, engine or train safely.

In a prosecution for involuntary manslaughter, the Commonwealth

must prove an "'accidental killing which, although unintended, is

the proximate result of negligence so gross, wanton, and culpable

as to show a reckless disregard for human life.'" Keech v.

Commonwealth, 9 Va. App. 272, 275, 386 S.E.2d 813, 814

(1989)(quoting King v. Commonwealth, 217 Va. 601, 607, 231 S.E.2d

312, 316 (1977)). However, in a prosecution under Code

§ 18.2-36.1(A), as in this case, the Commonwealth is obligated to

prove the accused drove "under the influence in violation of

subdivision (ii), (iii), or (iv) of § 18.2-266." Pollard v.

Commonwealth, 20 Va. App. 94, 99, 455 S.E.2d 283, 286

(1995)(citing Code § 18.2-36.1(A)).

The reasoning applied in Section II, supra, is equally

applicable here. On this record, we are unable to determine

whether the trial court applied the statutory presumption of

16
intoxication. The trial court allowed the breathalyzer test

results to be introduced into evidence as being in compliance

with the implied consent statute. Unlike Tipton, no expert

testimony in the case explained the significance of the test

results. While the Commonwealth presented persuasive evidence of

appellant's intoxication apart from the test results, we are

unable to conclude that the trial court's reliance upon the test

results and the presumption of intoxication were harmless in

finding that appellant acted with the criminal negligence

necessary to support an involuntary manslaughter conviction.
Accordingly, we reverse both convictions and remand for

further proceedings if the Commonwealth be so advised.

Reversed and remanded.

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