COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, McClanahan and Senior Judge Bumgardner Argued at Alexandria, Virginia
JOSE A. ACUNA MEMORANDUM OPINION* BY v. Record No. 1396-05-4 JUDGE RUDOLPH BUMGARDNER, III JULY 11, 2006 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA John E. Kloch, Judge
Joseph D. King, Assistant Public Defender, for appellant.
Eugene Murphy, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Jose A. Acuna was convicted of driving while intoxicated -- the fourth violation within
ten years, Code § 18.2-266, driving as an habitual offender, Code § 46.2-357, and unreasonable
refusal to submit to a breath test, Code § 18.2-268.3. The defendant contends the trial court
erred by admitting his statement of refusal to take a breath test, by admitting records of two prior
driving under the influence convictions, and by admitting the Division of Motor Vehicles record
of his adjudication as an habitual offender. Finding no error, we affirm his convictions.
At approximately 1:45 a.m., Officer Charles Young saw the defendant make an illegal
right turn at a red light. The officer followed and saw the defendant twice swerve into the right
lane. The officer activated his lights, but the defendant did not stop until the officer activated his
siren. As the officer approached, the defendant opened the car door, at which point the officer
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. detected a strong odor of alcohol. The defendant admitted he drank five beers and his license
was suspended for a prior driving under the influence conviction.
The defendant refused to perform field sobriety tests or to take a preliminary oxisensor
breath test. The officer arrested the defendant and read him the form required by Code
§ 18.2-268.3(B) that explained the implied consent law and the consequences of refusal. The
parties stipulated that without giving any Miranda warnings, the officer asked the defendant to
submit to a breath test, and the defendant stated, “he was not going to take the test.” The officer
completed the form, checking the box that the defendant refused to take the test. He took the
defendant before a magistrate, who issued a warrant for unreasonably refusing to take the test.
The defendant maintains his statement that he refused to take a breath test was a
compelled, incriminating response to custodial interrogation that violated the Fifth Amendment.
He argues that prior decisions holding to the contrary no longer control because an unreasonable
refusal now carries criminal penalties. Thus, he concludes, the content of his statement
constituted the crime of refusal.
Police can compel an individual to provide blood or breath samples without violating the
Fifth Amendment. This is so because “the privilege [against self-incrimination] protects an
accused only from being compelled to testify against himself, or otherwise provide the State with
evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of
the analysis in question in this case did not involve compulsion to these ends.” Schmerber v.
California, 384 U.S. 757, 761 (1966).
The Fifth Amendment does not bar the government from admitting at trial a suspect’s
statement that he or she refused to submit to a blood-alcohol test after being lawfully stopped on
suspicion of drunk driving. South Dakota v. Neville, 459 U.S. 553, 564 (1983). This is so
because “police inquiry of whether the suspect will take a blood-alcohol test is not an
-2- interrogation within the meaning of Miranda.” Id. at 564 n.15. Admission of the defendant’s
statement that he refused to submit to a breath test, “after a police officer has lawfully requested
it, is not an act coerced by the officer.” Id. at 564. The defendant’s statement of refusal was not
produced by custodial interrogation.
The defendant maintains that the content of his statement constituted a crime. His
statement merely concerned intent about a future act. The act of refusal constituted the crime,
not the statement in response to the officer’s question of whether the defendant would take the
test. The imposition of criminal penalties for refusal to take a breath test does not transform the
refusal into testimonial evidence. Rowley v. Commonwealth, 48 Va. App. 181, 183, 629 S.E.2d
188, 189 (2006) (“‘The word “witness” in the constitutional text limits the relevant category of
compelled incriminating communications to those that are “testimonial” in character.’” (quoting
United States v. Hubbell, 530 U.S. 27, 34 (2000))).
Even considering the criminal sanction of Code § 18.2-268.3, the defendant’s refusal to
submit to sobriety tests is not testimonial. “[T]he ‘fact of the refusal to perform tests that do not
themselves constitute communicative or testimonial evidence is equally non-communicative and
non-testimonial in nature.’” Id. at 186, 629 S.E.2d at 191 (quoting Farmer v. Commonwealth, 12
Va. App. 337, 341, 404 S.E.2d 371, 373 (1991)). Obtaining the defendant’s answer to whether
he would take the breath test did not violate the Fifth Amendment, and his statement of refusal
was admissible.
The defendant contends the trial court erred in admitting court records of two prior
driving under the influence convictions. He maintains the records did not prove he was
represented by counsel and, thus, the convictions cannot be used to enhance his punishment.
If a prior conviction resulted in incarceration, the Sixth Amendment requires that counsel
represented the defendant before the conviction can enhance punishment. “[A] previous
-3- misdemeanor conviction attended by incarceration is constitutionally offensive and may support
neither guilt nor enhanced punishment for a later offense, unless the accused either waived or
was represented by counsel in the earlier proceeding.” Nicely v. Commonwealth, 25 Va. App.
579, 583, 490 S.E.2d 281, 283 (1997); accord Samuels v. Commonwealth, 27 Va. App. 119, 123,
497 S.E.2d 873, 875 (1998).
The Commonwealth introduced a copy of the record of a 1995 conviction that a general
district court clerk had certified. The warrant did not indicate whether the defendant had an
attorney, but attached to it was an appearance of counsel form noting the appearance of the
attorney on behalf of the defendant. The pleading was signed and dated by the attorney.
The Commonwealth also introduced a certified copy of the defendant’s 1999 record of
conviction in general district court. Again, the warrant did not indicate whether the defendant
had an attorney, but attached to that warrant was a letter from the defendant’s attorney. It was on
the stationery of the attorney’s firm and noted the appearance for the defendant “who is charged
with Driving While Intoxicated and Habitual Offender.” The attorney signed the letter.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, McClanahan and Senior Judge Bumgardner Argued at Alexandria, Virginia
JOSE A. ACUNA MEMORANDUM OPINION* BY v. Record No. 1396-05-4 JUDGE RUDOLPH BUMGARDNER, III JULY 11, 2006 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA John E. Kloch, Judge
Joseph D. King, Assistant Public Defender, for appellant.
Eugene Murphy, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Jose A. Acuna was convicted of driving while intoxicated -- the fourth violation within
ten years, Code § 18.2-266, driving as an habitual offender, Code § 46.2-357, and unreasonable
refusal to submit to a breath test, Code § 18.2-268.3. The defendant contends the trial court
erred by admitting his statement of refusal to take a breath test, by admitting records of two prior
driving under the influence convictions, and by admitting the Division of Motor Vehicles record
of his adjudication as an habitual offender. Finding no error, we affirm his convictions.
At approximately 1:45 a.m., Officer Charles Young saw the defendant make an illegal
right turn at a red light. The officer followed and saw the defendant twice swerve into the right
lane. The officer activated his lights, but the defendant did not stop until the officer activated his
siren. As the officer approached, the defendant opened the car door, at which point the officer
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. detected a strong odor of alcohol. The defendant admitted he drank five beers and his license
was suspended for a prior driving under the influence conviction.
The defendant refused to perform field sobriety tests or to take a preliminary oxisensor
breath test. The officer arrested the defendant and read him the form required by Code
§ 18.2-268.3(B) that explained the implied consent law and the consequences of refusal. The
parties stipulated that without giving any Miranda warnings, the officer asked the defendant to
submit to a breath test, and the defendant stated, “he was not going to take the test.” The officer
completed the form, checking the box that the defendant refused to take the test. He took the
defendant before a magistrate, who issued a warrant for unreasonably refusing to take the test.
The defendant maintains his statement that he refused to take a breath test was a
compelled, incriminating response to custodial interrogation that violated the Fifth Amendment.
He argues that prior decisions holding to the contrary no longer control because an unreasonable
refusal now carries criminal penalties. Thus, he concludes, the content of his statement
constituted the crime of refusal.
Police can compel an individual to provide blood or breath samples without violating the
Fifth Amendment. This is so because “the privilege [against self-incrimination] protects an
accused only from being compelled to testify against himself, or otherwise provide the State with
evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of
the analysis in question in this case did not involve compulsion to these ends.” Schmerber v.
California, 384 U.S. 757, 761 (1966).
The Fifth Amendment does not bar the government from admitting at trial a suspect’s
statement that he or she refused to submit to a blood-alcohol test after being lawfully stopped on
suspicion of drunk driving. South Dakota v. Neville, 459 U.S. 553, 564 (1983). This is so
because “police inquiry of whether the suspect will take a blood-alcohol test is not an
-2- interrogation within the meaning of Miranda.” Id. at 564 n.15. Admission of the defendant’s
statement that he refused to submit to a breath test, “after a police officer has lawfully requested
it, is not an act coerced by the officer.” Id. at 564. The defendant’s statement of refusal was not
produced by custodial interrogation.
The defendant maintains that the content of his statement constituted a crime. His
statement merely concerned intent about a future act. The act of refusal constituted the crime,
not the statement in response to the officer’s question of whether the defendant would take the
test. The imposition of criminal penalties for refusal to take a breath test does not transform the
refusal into testimonial evidence. Rowley v. Commonwealth, 48 Va. App. 181, 183, 629 S.E.2d
188, 189 (2006) (“‘The word “witness” in the constitutional text limits the relevant category of
compelled incriminating communications to those that are “testimonial” in character.’” (quoting
United States v. Hubbell, 530 U.S. 27, 34 (2000))).
Even considering the criminal sanction of Code § 18.2-268.3, the defendant’s refusal to
submit to sobriety tests is not testimonial. “[T]he ‘fact of the refusal to perform tests that do not
themselves constitute communicative or testimonial evidence is equally non-communicative and
non-testimonial in nature.’” Id. at 186, 629 S.E.2d at 191 (quoting Farmer v. Commonwealth, 12
Va. App. 337, 341, 404 S.E.2d 371, 373 (1991)). Obtaining the defendant’s answer to whether
he would take the breath test did not violate the Fifth Amendment, and his statement of refusal
was admissible.
The defendant contends the trial court erred in admitting court records of two prior
driving under the influence convictions. He maintains the records did not prove he was
represented by counsel and, thus, the convictions cannot be used to enhance his punishment.
If a prior conviction resulted in incarceration, the Sixth Amendment requires that counsel
represented the defendant before the conviction can enhance punishment. “[A] previous
-3- misdemeanor conviction attended by incarceration is constitutionally offensive and may support
neither guilt nor enhanced punishment for a later offense, unless the accused either waived or
was represented by counsel in the earlier proceeding.” Nicely v. Commonwealth, 25 Va. App.
579, 583, 490 S.E.2d 281, 283 (1997); accord Samuels v. Commonwealth, 27 Va. App. 119, 123,
497 S.E.2d 873, 875 (1998).
The Commonwealth introduced a copy of the record of a 1995 conviction that a general
district court clerk had certified. The warrant did not indicate whether the defendant had an
attorney, but attached to it was an appearance of counsel form noting the appearance of the
attorney on behalf of the defendant. The pleading was signed and dated by the attorney.
The Commonwealth also introduced a certified copy of the defendant’s 1999 record of
conviction in general district court. Again, the warrant did not indicate whether the defendant
had an attorney, but attached to that warrant was a letter from the defendant’s attorney. It was on
the stationery of the attorney’s firm and noted the appearance for the defendant “who is charged
with Driving While Intoxicated and Habitual Offender.” The attorney signed the letter.
When a prior conviction is collaterally attacked in a subsequent proceeding, “the
Commonwealth is entitled to a presumption of regularity which attends the prior conviction
because ‘every act of a court of competent jurisdiction shall be presumed to have been rightly
done, till the contrary appears.’” Nicely, 25 Va. App. at 584, 490 S.E.2d at 283 (quoting Parke
v. Raley, 506 U.S. 20, 30 (1992)); accord Samuels, 27 Va. App. at 123, 497 S.E.2d at 875. The
records of the convictions in the general district court reflected an appearance by attorneys on
behalf of the defendant. The Commonwealth enjoyed a presumption of constitutional regularity
that the attorneys appeared at trial for the defendant. The defendant offered no evidence that the
attorneys had not appeared.
-4- Finally, the defendant challenges the admission of the record of the Division of Motor
Vehicles showing he had been adjudicated as an habitual offender. The defendant maintains that
the record is “akin to a testimonial affidavit by the Virginia Commissioner of Motor Vehicles”
and, thus, is “testimonial hearsay” prohibited under the Confrontation Clause as decided in
Crawford v. Washington, 541 U.S. 36 (2004).
While this appeal was pending, this Court decided Michels v. Commonwealth, 47
Va. App. 461, 624 S.E.2d 675 (2006), holding that an official record from an out-of-state agency
was not testimonial hearsay. Michels reasoned that the record was simply a computer-generated
official record “prepared in a non-adversarial setting in which ‘the factors likely to cloud the
perception of an official engaged in the more traditional law enforcement functions of
observation and investigation of crime are simply not present.’” Id. at 465, 624 S.E.2d at 678
(quoting State v. Dedman, 102 P.3d 628, 635 (N.M. 2004)).
Michels controls this case. The DMV document was an official record of an agency of
the Commonwealth. Those records are maintained as part of a governmental function, in a
non-adversarial setting, and “are a neutral repository of information . . . [which] do not resemble
ex parte examinations, ‘the principal evil at which the Confrontation Clause was directed.’” Id.
at 469, 624 S.E.2d at 679 (quoting Crawford, 541 U.S. at 50). The defendant’s driving record
was admissible pursuant to Code § 46.2-384, and its admission did not violate the Confrontation
Clause.
We affirm the defendant’s convictions. Affirmed.
-5-