COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Kelsey and McClanahan Argued at Alexandria, Virginia
PILAR L. MORIN MEMORANDUM OPINION* v. Record No. 2200-06-4 BY JUDGE D. ARTHUR KELSEY SEPTEMBER 18, 2007 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Benjamin N.A. Kendrick, Judge
Gilbert K. Davis (Davis & Associates, LLC, on brief), for appellant.
Benjamin H. Katz, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Convicted of drunk driving under Code § 18.2-266, Pilar L. Morin appeals on three
grounds. She challenges the sufficiency of the evidence, the alleged multifariousness of the
charge, and the constitutionality of rebuttable presumptions applied to prosecutions for driving
under the influence. Rejecting these challenges, we affirm Morin’s conviction.
I.
On appeal, we review the evidence in the “light most favorable” to the Commonwealth.
Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). Viewing the
evidence through this evidentiary prism requires us to “discard the evidence of the accused in
conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to
the Commonwealth and all fair inferences to be drawn therefrom.” Parks v. Commonwealth,
221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted).
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. So viewed, the record shows that shortly after 2:00 a.m. Morin made a u-turn in her sport
utility vehicle over a three-foot high median. Sparks sprayed out of the back of her vehicle as
she came down on the other side. After observing Morin scale the median, a police officer gave
chase with emergency lights and sirens activated. About five blocks later, Morin stopped her
vehicle.
When questioned, Morin admitted to the officer she had been drinking that night and was
on her way to another bar. The vehicle had not malfunctioned, Morin conceded, and she was not
having any health or medication issues. The officer noticed that Morin smelled of alcohol. She
had glassy, watery eyes and slurred speech. She claimed to have consumed less than five
alcoholic drinks and expressed concern about being arrested for DUI because of its impact on her
job as a school bus driver. The officer administered three field sobriety tests, each of which
Morin failed to perform properly. The officer arrested Morin and offered her the opportunity to
take a breath test. Morin agreed and gave a breath sample that yielded a breath alcohol
concentration of .20 grams per 210 liters of breath.1
Consistent with the DUI statute, the arrest warrant charged Morin for violating “Section
18.2-266” and then set out the various theories of criminal liability under which she could be
convicted. See generally Code § 18.2-266 (“A charge alleging a violation of this section shall
support a conviction under clauses (i), (ii), (iii), (iv), or (v).”). The warrant stated Morin drove
“while having a blood alcohol concentration of 0.08 percent or more . . . or 0.08 grams or more”
per 210 liters of breath (corresponding to subsection (i) of § 18.2-266) or “while under the
influence of alcohol” (corresponding to subsection (ii) of § 18.2-266) or while under the
1 Code § 18.2-266(i) prohibits driving with a blood alcohol concentration of “0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath.”
-2- influence of drugs or drugs combined with alcohol (corresponding to subsections (iii) and (iv) of
§ 18.2-266). The warrant further noted Morin’s .20 blood alcohol concentration (BAC).2
The general district court found Morin guilty as charged and imposed the minimum
mandatory sentence of five days in jail under Code § 18.2-270(A), applicable to convictions
accompanied by a BAC of “at least 0.15, but not more than 0.20.” Morin appealed to the circuit
court and filed a motion to dismiss. Morin pointed out that the arrest warrant charged her with
violating Code § 18.2-266 and repeated verbatim each subsection of the statute as alternative
grounds for her alleged guilt. That disjunctive method, she asserted, made the warrant
multifarious and required the court to dismiss the charge unless the prosecution elected one
specific subsection under which to proceed. Morin also attacked the rebuttable presumptions
applied by Code § 18.2-269 as an unconstitutional shifting of the burden of proof.
In addition to the arguments made in her written motion, Morin also asserted that the
minimum mandatory sentence triggered by a finding of a .20 BAC constituted a “different
element” governed by United States v. Booker, 543 U.S. 220 (2005) (distinguishing between
“elements of a crime” and mere “sentencing factors” for purposes of the Sixth Amendment). In
response to this new argument, the Commonwealth conceded the point, admitting: “we do have
to prove all the elements of the DWI, .15 to .20, in order to have the sentencing enhancement.”
2 For purposes of this opinion, BAC will be used to describe both blood alcohol concentration, expressed as a percentage “by weight by volume,” Code § 18.2-266, and breath alcohol concentration, measured in grams “per 210 liters of breath,” id. See Code § 18.2-268.9 (acknowledging the validity of a “blood alcohol reading” obtained from equipment used to perform a “breath test”); Hall v. Commonwealth, 32 Va. App. 616, 631, 529 S.E.2d 829, 837 (2000) (en banc) (describing a “blood alcohol concentration” in terms of “grams per 210 liters of breath” (emphasis added)); see also United States v. Sauls, 981 F. Supp. 909, 924 (D. Md. 1997) (“In this [opinion], BAC is defined as either blood alcohol concentration, stated as grams per 100 milliliters of blood or as breath alcohol concentration, stated as grams per 210 liters of breath, and is reported without a ‘%’ sign.”).
-3- But the Commonwealth distinguished Booker as “a totally different situation, because those were
post-trial findings. This is a trial finding.”
The court rejected Morin’s various motions and tried the case to a jury. The arresting
officer presented his testimony about Morin’s intoxicated state at the time of her arrest. The
officer also presented the certificate of analysis showing the .20 BAC finding from the breath
test. After the Commonwealth rested, Morin called her husband and two friends to the stand
who testified that Morin had been drinking light beer that night — but not very much. After they
testified, Morin took the stand in her own defense. She testified that she, her husband, and her
friends had been to various bars that night. She admitted drinking beer but denied ever being
intoxicated.
Morin also presented expert testimony from a toxicologist about the tests employed by
the Commonwealth to measure BAC. The toxicologist described the rate of absorption of
alcohol in a person’s blood and the effects of various variables such as body weight, age, size,
food consumption, and the like. He added that timing was particularly important. While .03
BAC could be added by each bottle of light beer, the toxicologist estimated that .01 BAC would
be eliminated in the blood over an hour’s time.
The defense toxicologist concluded that a person of Morin’s physical characteristics
would have had a .06 BAC if she consumed less than five beers over the time frame described by
Morin. He conceded his opinion was “based on the accuracy” of Morin’s statements. For the
BAC to be as high as .20, the toxicologist said, Morin would have had to consume about ten to
eleven beers that night. He added that the breath test may have produced a false reading because
of indigestion gas or other factors skewing the sampling procedure.
The court then addressed with counsel the subject of jury instructions. The prosecutor
requested a finding instruction that took into account that the jurors could find the BAC “could
-4- have been less than .20” but still not as low as the .06 figure hypothesized by the toxicologist.
The prosecutor also asked that the instruction permit the jury to convict on either or both of the
two relevant theories of liability under Code § 18.2-266 — a per se violation of subsection (i)
due to driving with a BAC of .08 or more, or a violation of subsection (ii)’s prohibition of
driving under the influence. The trial court agreed and incorporated both in the finding
instruction. The court also gave another instruction defining “under the influence” to include an
accused who “has drunk enough alcoholic beverages to so affect her manner, disposition, speech,
muscular movement, general appearance or behavior as to be apparent to observation.”
The last paragraph of the finding instruction included a specific factfinding task: “If you
find the defendant guilty because she had a concentration of 0.08 grams or more of alcohol per
210 liters of breath, then you shall indicate whether you find that [her] concentration was: (1)
0.08 or greater, (2) at least 0.15 but less than 0.20 or (3) less than 0.15.” Agreeing with the
prosecutor, the court explained to Morin’s counsel that this language allowed the jurors to find
her guilty with “no mandatory minimum” sentence. See Code § 18.2-270(A) (imposing a 5-day
mandatory minimum jail term for convictions accompanied by a ≥ .15 but ≤ .20 BAC and a
10-day term for BACs higher than .20). Neither Morin nor the prosecutor, however, asked the
court to instruct the jury on the “rebuttable presumptions” that permit inferences of driving under
the influence based upon certain BAC levels. See Code § 18.2-269.
During closing argument, the prosecutor repeated several times that the jury could find
Morin guilty under either or both of the two proof regimes approved by Code § 18.2-266(i) and
(ii). The verdict form did not distinguish between the two. The guilt option of the verdict form
read: “We, the jury, find the Defendant Guilty of DWI, 1st as charged in the summons, with a
Blood Alcohol Content of ____________.” During their deliberations, the jury questioned this.
“Re: Verdict Sheet,” the jurors asked, “[b]ased on a guilty verdict, is the jury required to assess a
-5- blood alcohol level by choosing one of the three options in Instruction #4 paragraph #4 (1), (2),
or (3) or can we find her guilty without selecting one of the options?” The court answered with
an admonition to read the finding instruction carefully. The jury shortly thereafter returned with
a verdict reading: “We, the Jury, find the Defendant Guilty of DWI, 1st as charged in the
summons, with a Blood Alcohol Content of (3) less than .15.” They added the underscored
language by hand.
After the jury imposed punishment, Morin moved to set aside the verdict claiming it
rested on insufficient evidence. The only believable BAC evidence, she asserted, was the
toxicologist’s estimate of a .06 BAC. Having rejected the .20 BAC presented by the
Commonwealth, Morin’s counsel reasoned, the jury had no choice but to accept the
toxicologist’s opinion and to acquit her of a subsection (i) violation for driving with a BAC of
.08 or more. Alluding to subsection (ii), the court questioned counsel’s reasoning: “Do you
think this record supports the jury’s verdict of driving under the influence?” “Yes,” counsel
answered, “I think it could support that verdict.” “And that could be less than .15,” the court
noted, “[a]nd that’s what they found.” The court denied Morin’s motion and entered final
judgment.
II.
Morin appeals on three grounds. She first claims the jury acquitted her of driving under
the influence (subsection (ii) of § 18.2-266) and limited its guilty finding solely to driving while
having a BAC of .08 or higher (subsection (i) of § 18.2-266). With that limitation, the
conviction could not stand because the jury had no choice but to accept the toxicologist’s
estimate of a maximum BAC of .06. Second, Morin renews her assertion that the arrest warrant
-6- asserted multifarious charges grouped as a single charge under Code § 18.2-266. Finally, Morin
attacks the constitutionality of the “rebuttable presumptions” adopted by Code § 18.2-269.
We find none of these arguments persuasive.
A. THE EVIDENTIARY SUFFICIENCY OF A SUBSECTION (i) PER SE CONVICTION
Morin states her first question presented this way: “Whether the trial evidence supported
the verdict of driving with a blood alcohol level range of .08 to less than .15?” Appellant’s Br. at
1. She then goes on to answer that question with the assertion that the jury had but two options
with respect to the BAC evidence: first, either to wholly accept the Commonwealth’s evidence
of a .20 BAC, or, second, to wholly accept Morin’s claim to have consumed less than five beers,
thereby placing her BAC below .08 (as her toxicologist testified). What the jury did, Morin
claims, it could not do — and that is to find her guilty for a per se violation while simultaneously
determining her BAC to be “less than” .15. We reject this argument as flawed both in its first
premise and in its application to the facts of this case.
To begin with, Morin assumes that the jury acquitted her of driving under the influence
under Code § 18.2-266(ii) and convicted her only of the per se offense of driving with a BAC
level of .08 or more under Code § 18.2-266(i). We see no basis in the trial record for this
assumption. The finding instruction permitted a conviction on either or both grounds. A
separate definitional instruction spelled out the circumstances satisfying the subsection (ii)
standard for driving under the influence. The prosecutor addressed each ground separately
during his closing argument and invited the jury to convict on both. If the verdict form implies
anything, it suggests the jurors did just that. Indeed, the verdict specifically stated they found
Morin guilty “as charged” in the summons. The summons and arrest warrant charged Morin
with violating Code § 18.2-266 and did not limit itself to a per se theory of liability under
-7- subsection (i). A DUI verdict finding an accused guilty “as charged” in a warrant citing Code
§ 18.2-266 requires that we address on appeal “both subsection (i) and subsection (ii) of Code
§ 18.2-266.” Yap v. Commonwealth, 49 Va. App. 622, 627 n.1, 643 S.E.2d 523, 525 n.1 (2007);
accord Code § 18.2-266 (providing that a “charge alleging a violation of this section shall
support a conviction under clauses (i), (ii), (iii), (iv), or (v)”).
Nor do we accept Morin’s assertion that the jury’s specific factual finding of a BAC of
“less than” .15 constitutes an acquittal of subsection (ii)’s prohibition of driving under the
influence.3 It is true the finding instruction told the jurors that if it found her guilty “because” of
a BAC level of .08 or more, then they “shall” determine the BAC. But that directive did not
preclude the jury from specifying the BAC after finding Morin guilty on both subsection (i) and
(ii) grounds. To be sure, given the guilty “as charged” language, the most plausible reading of
the verdict is that the jury convicted Morin under both theories of criminal liability.
The context of the finding instruction also refutes Morin’s argument. As the trial judge
noted in his colloquy with counsel, the .15 and .20 BAC thresholds in the finding instruction do
not correspond to the evidentiary presumptions of Code § 18.2-269, which uses BAC thresholds
of .05 and .08 for purposes of inferring intoxication. Code § 18.2-269(A) applies these
inferences to prosecutions for violations of “clause (ii), (iii) or (iv) of § 18.2-266” — but not to
violations of subsection (i). See Davis v. Commonwealth, 8 Va. App. 291, 297-98, 381 S.E.2d
11, 14-15 (1989). Nothing in the finding instruction implied that by making the specific BAC
3 The jury’s verdict form for the guilt phase of the trial finds Morin’s BAC to be “less than .15.” The final judgment order likewise recites the jury’s finding as “guilty as charged” with a BAC “less than .15.” The verdict form for the sentencing phase of the trial, however, recites the guilt findings as “at least .08 but less than .15.” Morin did not at trial, nor does she on appeal, object to the inconsistency between the final judgment order, which recites accurately the guilt verdict, and the prefatory language of the sentencing verdict, which does not.
-8- determination the jurors necessarily were choosing to acquit Morin of driving under the
influence and to convict her only of a per se violation.4
Perhaps, as Morin suggests, the jury “desired to show leniency,” Appellant’s Br. at 15, by
finding her guilty but fixing her BAC below the .15 threshold despite the Commonwealth’s
evidence of a .20 BAC. We acknowledge this possibility. The finding instruction, after all,
mentions the ≤ .15 and ≥ .20 BAC levels with no context whatsoever, thus leaving the jurors free
to correctly suppose its relevance had nothing to do with guilt and everything to do with
punishment.
We fail to see, however, how this speculation supports Morin’s appellate request for
exoneration. “Consistency in jury verdicts is not required.” Gaines v. Commonwealth, 39
Va. App. 562, 570, 574 S.E.2d 775, 779 (2003) (citing Dunn v. United States, 284 U.S. 390, 394
(1932)). It is easy to see why this is so. Inconsistent jury verdicts “present a situation where
‘error,’ in the sense that the jury has not followed the court’s instructions, most certainly has
occurred, but it is unclear whose ox has been gored.” Id. (quoting United States v. Powell, 469
U.S. 57, 65 (1984)). Even if we were to accept Morin’s assertion that the verdict “guilty as
charged” was inconsistent with the jury’s BAC finding, that ambiguity is far more tolerable than
an unwarranted reversal of a conviction on the ground that the verdict arguably included an
understandable, but logically inconsistent, emotive element of clemency.
In short, Morin’s argument makes an assumption we are unwilling to accept — that the
jury acquitted her of driving under the influence under Code § 18.2-266(ii), despite
4 The only point of the .15 and .20 BAC thresholds, as the trial court noted, was to determine the appropriate mandatory minimum punishment under Code § 18.2-270(A). By making a finding of “less than” .15 BAC, the jurors were not applying the evidentiary presumptions of Code § 18.2-269. They had never been instructed on those presumptions. The trial judge offered Morin the opportunity to present an instruction on this topic; she decided against it.
-9- overwhelming evidence of her guilt, and found her guilty only of the per se offense of driving
with a BAC of .08 or more in violation of Code § 18.2-266(i). Morin was charged with violating
both provisions; the jury was instructed on both theories of culpability; and the verdict found her
guilty “as charged.” The jury’s BAC finding, requested by the trial court only for the purpose of
determining the applicability of a mandatory minimum sentence, cannot fairly be construed as an
acquittal of driving under the influence under Code § 18.2-266(ii).
Having rejected the assumption underlying Morin’s argument, we similarly reject
Morin’s remaining challenge to the sufficiency of the evidence. In Virginia, the factfinding in a
lower court receives “the highest degree of appellate deference.” Thomas v. Commonwealth, 48
Va. App. 605, 608, 633 S.E.2d 229, 231 (2006). “As an appellate court, we are not permitted to
reweigh the evidence.” Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007).
Presuming factual findings to be correct, we reverse “only if the trial court’s decision is ‘plainly
wrong or without evidence to support it.’” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584
S.E.2d 444, 447 (2003) (en banc) (citations omitted). This standard requires us to determine
whether “any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Haskins v. Commonwealth, 44 Va. App. 1, 7, 602 S.E.2d 402, 405 (2004)
(citation and footnote omitted; emphasis in original); see also Barnes v. Commonwealth, 47
Va. App. 105, 110, 622 S.E.2d 278, 280 (2005). Governed by this standard, we find the
evidence amply supports the jury’s verdict on both subsection (i) and (ii) theories of liability.
To convict under subsection (i), the jury was not required to make an election between
wholly believing the Commonwealth’s evidence of a .20 BAC or wholly believing the defense
toxicologist’s estimate of less than .08. The power to segregate evidence “into the believable,
partly believable, or wholly unbelievable is an exercise of decisional discretion intrinsic to the
factfinding task and essential to its proper performance.” Harper v. Commonwealth, 49
- 10 - Va. App. 517, 523, 642 S.E.2d 779, 782 (2007); see also Goodman v. Commonwealth, 37
Va. App. 374, 386, 558 S.E.2d 555, 561 (2002) (“The fact finder is not required to believe all
aspects of a witness’ testimony; it may accept some parts as believable and reject other parts as
implausible.”).
Consequently, a rational jury could have discounted the Commonwealth’s evidence based
upon the toxicologist’s reservations about the reliability of the breath test. The jury could have
similarly discounted the toxicologist’s low-ball BAC estimate as naïvely reliant on the criminal
defendant’s self-serving claim that she drank no more than five beers that night. Between these
two evidentiary poles, the jury could have concluded that the BAC exceeded .08 but was less
than .15. The methodology employed by Morin’s toxicologist provided a basis for reaching this
conclusion. On this record, therefore, Morin’s sufficiency challenge to a per se conviction under
subsection (i) cannot succeed.
We come to the same conclusion about the evidence supporting Morin’s guilt under
subsection (ii). Her erratic driving over the three-foot high median on her way to another bar,
her confession of drinking and driving, the smell of alcohol, her glassy, watery eyes and slurred
speech, and her three failed field sobriety tests — these circumstances, taken together, eliminate
any plausible challenge to the sufficiency of the evidence supporting Morin’s guilt under Code
§ 18.2-266(ii). See, e.g., Cutright v. Commonwealth, 43 Va. App. 593, 598, 601 S.E.2d 1, 3
(2004) (holding an officer’s observations of defendant’s intoxication “moments after he stepped
out of his car” was a sufficient evidentiary showing, even without BAC test results, to support a
DUI conviction under Code § 18.2-266(ii)); Lemond v. Commonwealth, 19 Va. App. 687, 694,
454 S.E.2d 31, 35-36 (1995) (holding a defendant’s admission that she consumed alcoholic
beverages, coupled with her appearance and lack of coordination, is sufficient to support a
conviction for driving under the influence of alcohol).
- 11 - In short, we reject Morin’s assertion that the jury acquitted her of driving under the
influence in violation of subsection (ii) and limited its finding of guilt to a per se offense under
subsection (i). Nothing in the charging instrument, closing arguments, finding instruction, or
verdict form supports Morin’s interpretation of the nature of her conviction. We similarly reject
Morin’s challenge to the sufficiency of the evidence. A rational jury can, and we think did, find
Morin guilty under both subsection (i) and (ii) theories of criminal liability. And either, standing
alone, is sufficient to support the validity of her conviction.
B. THE MULTIFARIOUSNESS OBJECTION
Morin argues that the arrest warrant (serving as the charging instrument) should have
been dismissed because it charged her with more than one crime. Short of dismissal, Morin
contends, the trial court should have forced the Commonwealth to elect before trial between the
separate theories of liability recognized by subsections (i) and (ii) of Code § 18.2-266. By
failing to do either, Morin concludes, the trial court’s error “implicated federal and state
constitutional rights concerning double jeopardy, and due process notice” principles.
Appellant’s Br. at 14.
Double jeopardy and due process are weighty topics, deserving of considerable analytical
respect both by counsel and courts. Morin’s appellate brief, however, cites no cases, statutes,
treatises, or other informative legal sources addressing any aspect of her argument. Nor does she
mention that the DUI statute itself states a “charge alleging a violation of this section shall
support a conviction under clauses (i), (ii), (iii), (iv), or (v).” Code § 18.2-266.5
5 In this case, as in Cutright, the Commonwealth “charged [the defendant] with violating all four subsections of Code § 18.2-266. Even if it had not done so, the Commonwealth could rely on any subsection of Code § 18.2-266 in support of a charge asserting a violation of the statute generally.” Cutright v. Commonwealth, 43 Va. App. 593, 597, 601 S.E.2d 1, 3 (2004) (emphasis added) (quoting Code § 18.2-266 stating a “charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii) or (iv)” (quote in parenthetical and emphasis in original)).”
- 12 - “Rule 5A:20(e) requires an appellant’s brief to include, among other things, the
‘principles of law, the argument, and the authorities relating to each question presented.’”
McCallum v. Salazar, 49 Va. App. 51, 56 n.2, 636 S.E.2d 486, 488 n.2 (2006); see also Mason v.
Commonwealth, 49 Va. App. 39, 46 n.2, 636 S.E.2d 480, 483 n.2 (2006). “Rule 5A:20(e) bars
us from addressing any issues unsupported by authority.” Klein v. Klein, 49 Va. App. 478, 482,
642 S.E.2d 313, 315 (2007). “By failing to cite any authority,” Epps v. Commonwealth, 47
Va. App. 687, 718, 626 S.E.2d 912, 926 (2006) (en banc), aff’d, 273 Va. 410, 641 S.E.2d 77
(2007), Morin has forfeited her appellate opportunity to challenge her conviction on double
jeopardy and due process grounds. See also Stokes v. Commonwealth, 49 Va. App. 401, 410,
641 S.E.2d 780, 784 (2007) (declining to address issue where appellant “cites no authority” for
her position).
The rationale behind this principle rests on far firmer ground than mere procedural
default principles. Practically speaking, for us to intelligently rule on Morin’s unadorned double
jeopardy and due process assertions, we would first need to frame the specific constitutional
rights at stake, discern which lines of judicial authority (if any) support or refute her assertions,
provide the Commonwealth with an opportunity to respond to those precedents (necessitating
additional briefing because the Attorney General would not know which precedents we thought
relevant until we informed him), and then decide upon the best possible answer to the best
possible articulation of Morin’s position. None of this can we do. “Suffice it to say, such an
exercise of sua sponte judicial power would impermissibly place us in the role of advocate — far
outside the boundaries of our traditional adjudicative duties.” Johnson v. Commonwealth, 45
Va. App. 113, 116, 609 S.E.2d 58, 59 (2005).
- 13 - C. THE REBUTTABLE PRESUMPTIONS OF CODE § 18.2-269
Morin challenges the constitutionality of the “rebuttable presumptions” employed by
Code § 18.2-269. This argument fails at its inception because the jury was never instructed on
these rebuttable presumptions and Code § 18.2-269(A), moreover, makes clear the presumptions
do not apply to per se violations under Code § 18.2-266(i) — the only theory on which Morin
claims to have been convicted. The presumption Morin misidentifies, but nonetheless means to
target, is the implication inherent in Code § 18.2-266(i), which permits the factfinder to infer that
the BAC level determined by a timely breath test accurately states the BAC level at the time of
driving. See Davis, 8 Va. App. at 298, 381 S.E.2d at 315.6 While sometimes called a “rebuttable
presumption,” the later-BAC-implies-prior-BAC principle underlying Code § 18.2-266(i) is no
more than a permissible evidentiary inference that the factfinder may accept or reject. Yap v.
Commonwealth, 49 Va. App. 622, 633, 643 S.E.2d 523, 528 (2007). Understood that way, the
inference violates no constitutional norms. Id. at 633-37, 643 S.E.2d at 528-30 (applying
permissible-inference interpretation to the unstated, but inherent, presumption stemming from
Code § 18.2-266(i) as well as to the express statutory presumptions of Code § 18.2-269).
III.
Rejecting Morin’s sufficiency, multifariousness, and constitutional challenges to her
conviction under Code § 18.2-266, we affirm.
Affirmed.
6 See also Charles v. Commonwealth, 23 Va. App. 161, 163-64, 474 S.E.2d 860, 861 (1996) (en banc); Lemond, 19 Va. App. at 692, 454 S.E.2d at 34; Kehl v. Commonwealth, 15 Va. App. 602, 605, 426 S.E.2d 127, 129 (1993).
- 14 -