Luginbyhl v. Commonwealth

618 S.E.2d 347, 46 Va. App. 460, 2005 Va. App. LEXIS 329
CourtCourt of Appeals of Virginia
DecidedAugust 30, 2005
DocketRecord 1333-04-4
StatusPublished
Cited by25 cases

This text of 618 S.E.2d 347 (Luginbyhl v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Luginbyhl v. Commonwealth, 618 S.E.2d 347, 46 Va. App. 460, 2005 Va. App. LEXIS 329 (Va. Ct. App. 2005).

Opinions

ROSEMARIE ANNUNZIATA, Senior Judge.

Alan Luginbyhl was charged with and convicted of driving while intoxicated (DWI) pursuant to Code § 18.2-266. On appeal, he contends his conviction should be reversed because the trial court erred in admitting into evidence a certificate of blood alcohol analysis based on the result obtained from a breath test. Specifically, he argues that admission of the document violated his rights under the Confrontation Clause of the Sixth Amendment. For the reasons that follow, we disagree and affirm his conviction.

I. Background

In accord with our usual standard of review, we view the evidence and all reasonable inferences flowing from the evidence in a light most favorable to the Commonwealth as the party prevailing in the trial court. Garcia v. Commonwealth, 40 Va.App. 184, 189, 578 S.E.2d 97, 99 (2003). So viewed, the evidence1 establishes that, on November 23, 2003, Luginbyhl drove his car out of a parking lot and for a few moments remained perpendicular to the lanes of travel, blocking the [463]*463oncoming traffic. Several cars had to brake abruptly in order to avoid hitting Luginbyhl before he slowly turned his vehicle to the right. He began “weaving” as he continued driving down the road, missing the curb “by approximately two inches.” Approaching vehicles had to brake to avoid a collision when Luginbyhl slowly turned left into a shopping center.

Fairfax County Police Officer Darren Day witnessed Luginbyhl’s erratic driving and effected a traffic stop. Day detected a strong odor of alcohol emanating from Luginbyhl and noticed that his eyes were glassy and bloodshot, that his face was red, and that he exhibited sluggish motor skills. As Luginbyhl exited his vehicle, he began to fall forward, requiring Day to provide support. Asked how much alcohol he had had to drink, Luginbyhl responded, “I had a lot.” He further admitted consuming “6, 7 or 8 vodka drinks.”

Luginbyhl was unable to successfully perform two field sobriety tests: the “finger-to-nose test” and the “one-legged stand test.” In the course of trying to complete the latter, Luginbyhl began to cry and stated, “I’m drunk; I’m an alcoholic.” Day thus placed Luginbyhl under arrest and took him to a police substation where a breath test was conducted.

Although Day was present and observed Luginbyhl take the breath test, he did not administer it. Day explained that his license to operate the breath test machine expired a year earlier.

The trial judge admitted the breath test certificate over Luginbyhl’s Sixth Amendment objections. The breath test certificate indicates that Officer Edward A. Caine administered the test and that Luginbyhl’s blood alcohol content was 0.24 grams per 210 liters of breath. The certificate also contains the following preprinted attestation:

I CERTIFY THAT THE ABOVE IS AN ACCURATE RECORD OF THE TEST CONDUCTED; THAT THE TEST WAS CONDUCTED WITH THE TYPE OF EQUIPMENT AND IN ACCORDANCE WITH THE METHODS APPROVED BY THE DEPARTMENT OF CRIMINAL JUSTICE SERVICES, DIVISION OF FO[464]*464RENSIC SCIENCE; THAT THE TEST WAS CONDUCTED IN ACCORDANCE WITH THE DIVISION’S SPECIFICATIONS; THAT THE EQUIPMENT ON WHICH THE BREATH TEST WAS CONDUCTED HAS BEEN TESTED WITHIN THE PAST SIX MONTHS AND FOUND TO BE ACCURATE; THAT PRIOR TO ADMINISTRATION OF THE TEST THE ACCUSED WAS ADVISED OF HIS RIGHT TO OBSERVE THE PROCESS AND SEE THE BLOOD ALCOHOL READING ON THE EQUIPMENT USED TO PERFORM THE BREATH TEST, AND THAT I POSSESS A VALID LICENSE TO CONDUCT SUCH TEST, GIVEN UNDER MY HAND THIS 25TH DAY OF NOVEMBER, 2003.

Officer Caine signed in the space below the attestation under the words “BREATH TEST OPERATOR.” Officer Caine did not testify at Luginbyhl’s trial.

Based on the breath test evidence and the testimony of Officer Day, the trial judge found Luginbyhl guilty of DWI and sentenced him to 180 days in jail, 170 of which were suspended on condition of good behavior.

Citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), Luginbyhl argues on appeal that the contents of the breath test certificate constitute “testimonial hearsay” and that the trial court violated his Sixth Amendment right to confront the witnesses against him by admitting the certificate without the testimony of Officer Caine. We interpret his appeal to encompass both components of the breath test certificate: (1) the result of the breath test showing his BAC to be 0.24 and (2) the attestation certifying that the equipment was in good working order and that Officer Caine was licensed to perform the breath test.2 His appeal raises an issue of first impression in Virginia.3

[465]*465We do not agree that the trial court erred in admitting either component of the breath test certificate. We hold that the result of the breath test does not constitute hearsay and therefore does not implicate Luginbyhl’s Sixth Amendment rights. We further hold that the statements contained in the certificate attesting to the equipment’s good working order and Officer Caine’s valid license to operate the machine do not constitute “testimonial” hearsay and are therefore not subject to the rule in Crawford.

II. The Result of the Breath Test Does Not Constitute Hearsay and its Admission into Evidence Does Not Implicate Luginbyhl’s Sixth Amendment Right to Confrontation

The Sixth Amendment to the United States Constitution provides, in part, that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI (emphasis added). By its very terms, the constitutional guarantee applies only to witnesses against the accused. The guarantee operates by preventing the admission of witness testimony through hearsay evidence at trial unless the prosecution shows that the hearsay declarant (witness) is unavailable and that the accused had a prior opportunity to cross-examine the hearsay declarant. Crawford, 541 U.S. at 53-54, 59, 124 S.Ct. at 1365-66. The guarantee does not apply to evidence that is not hearsay. Id. at 61, 124 S.Ct. at 1370.

Virginia has described hearsay evidence as

“evidence which derives its value, not solely from the credit to be given the witness on the stand, but in part from the [466]*466veracity and competency of some other person. It is primarily testimony which consists in a narration by one person of matters told him by another. A clear example of hearsay evidence is where a witness testifies to the declaration of another for the purpose of proving the facts asserted by the declarant.”

Wright v. Kaye, 267 Va. 510, 530, 593 S.E.2d 307, 318 (2004) (quoting Williams v. Morris, 200 Va. 413, 416-17, 105 S.E.2d 829, 832 (1958)). See Clark v. Commonwealth, 14 Va.App. 1068, 1070, 421 S.E.2d 28, 30 (1992) (defining hearsay as “a statement, other than one made by the declarant while testifying at trial, which is offered to prove the truth of the matter asserted” (emphasis added) (citing

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Bluebook (online)
618 S.E.2d 347, 46 Va. App. 460, 2005 Va. App. LEXIS 329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luginbyhl-v-commonwealth-vactapp-2005.