Roseborough v. Commonwealth

672 S.E.2d 917, 53 Va. App. 451, 2009 Va. App. LEXIS 84

• Court: Court of Appeals of Virginia
• Decided: February 24, 2009
• Docket: Record 2377-07-4
• Status: Published

Opinions

BEALES, J., Judge.

Lawrence W. Roseborough (appellant) was convicted by the trial court of driving while intoxicated (DWI), in violation of Code § 18.2-266. On appeal, he argues that the trial court erred in admitting a certificate of analysis containing the results of his breath test because the “test was not administered pursuant to the implied consent law.” Specifically, he contends that his arrest was unlawful and, therefore, Code § 18.2-268.2(A), commonly referred to as the implied consent statute, required the exclusion of the certificate of analysis from his trial. Assuming without deciding that the officer did not have statutory authority to arrest appellant, we find the trial court did not err in admitting the certificate into evidence given the facts presented in this case. We find the implied consent statute was not used in this case to obtain the breath sample because appellant expressly volunteered to provide the sample before the officer could even mention the provisions of the implied consent statute to him. Thus, we affirm appellant’s conviction.

BACKGROUND¹

On January 15, 2007, Charles Banks was working as a guard at the Watergate at Landmark apartment complex in the City of Alexandria. At about 2:00 a.m., he “[h]eard an accident.” Banks rushed to the scene, which was on the complex’s private road rather than on a public street. As he arrived, Banks observed appellant standing beside the open, driver’s-side door of a pickup truck that had run over the curb of the private road and gotten “stuck” on a hill.

Officer. Seth Weinstein responded within thirty minutes of the crash. Appellant told Officer Weinstein that his friend, Jay, was driving the truck, but he “ran off.” Appellant could not tell the officer Jay’s last name, phone number, or address, other than to say that Jay lived in the apartment complex. Appellant admitted that he had been drinking at a bar in the District of Columbia. Appellant then said, “I brought [Jay] back here,” which the officer believed was an admission that appellant had been driving the truck.

Appellant smelled of alcohol, he swayed as he walked, his eyes were bloodshot and watery, and he spoke very loudly. He refused to perform any field sobriety tests at the scene. The officer arrested him for DWI based on appellant’s admissions and the officer’s observations at the scene. In a search pursuant to that arrest, Officer Weinstein discovered a remote key for the truck in appellant’s pocket. The ignition key was still in the ignition.

As Officer Weinstein was transporting appellant to the detention center after his arrest, appellant said “he was considering blowing [into the Intoxilyzer²] for [the officer] because [he] had been so nice.” Appellant added that “he would blow if [the officer] would consider releasing him if he blew into the Intox[ilyzer].” Officer Weinstein responded that, if appellant’s breath test resulted in a blood/breath alcohol concentration (BAC) reading of .05 or less, then appellant “would be presumed to be sober in Virginia and he would be released and not charged” with DWI. When they arrived at the detention center, as the officer was reading the Miranda warnings to him, appellant “brought the subject up and said that he was willing to blow and he wanted to blow.” Up to that point, the officer had not decided whether he would even bring up the breath test, as he was not sure that the implied consent law applied when, as here, a suspect was arrested on private property. However, as the officer put it, appellant “made the decision” for him when he volunteered to take the test. Officer Weinstein administered the test, appellant blew into the Intoxilyzer, and the breath test resulted in a BAC reading of .09.

At trial,³ Officer Weinstein testified about the events leading to appellant’s arrest and appellant’s offer to take the breath test. The officer testified that he was a certified Intoxilyzer operator, that he administered the test, that he observed appellant for twenty minutes before administering the test, and that he did not observe any behavior that would have affected the outcome of the test. The officer identified the certificate of analysis that was created when he administered the test, and he identified his signature on the attestation line of the certificate. The Commonwealth then moved for the introduction of that document into evidence.

Appellant objected to introduction of the certificate. He argued that, because the officer did not have statutory authority to arrest appellant under Code § 19.2-81 (both because the DWI, which was a misdemeanor offense in this case, did not occur in the officer’s presence and because the accident did not occur on a public highway), the implied consent statute did not apply to say that appellant was “deemed as a condition of such operation [of his car] to have consented to a blood test or breath test.” Therefore, he contended, the certificate was not admissible. Appellant did not argue that the certificate failed to meet any of the evidentiary requirements found in Code § 18.2-268.9 for admission of a certificate of analysis nor did he make any argument regarding hearsay or other rules of evidence. Instead, appellant’s sole objection to the introduction of the certificate was that the situation did not constitute “a proper arrest” for the application of the implied consent law to obtain the breath sample, so the certificate was inadmissible. In response to the argument that he voluntarily took the test, appellant argued that agreeing to the test did not validate his arrest.

The trial court overruled appellant’s objections and admitted the certificate. The court then found appellant guilty of DWI.

On appeal, appellant argues that the results of the breath test here were inadmissible because “the accused must first be validly arrested.” He does not reference any rule of evidence that would exclude a certificate created when a suspect, on his own initiative, has asked an officer to perform the Intoxilyzer test without first being informed about the implied consent statute. Appellant simply contends that the officer did not follow the “arrest” provision of Code § 18.2-268.2, and, thus, the certificate was not admissible. Specifically, he contends that the officer could not presume that appellant consented to take the test under Code § 18.2-268.2 because the arrest was improper, and, therefore, the trial court erred in not excluding the certificate.

ANALYSIS

Appellant argues that Officer Weinstein did not have statutory authority to arrest him under Code § 19.2-81. He contends that, because Code § 18.2-268.2, the implied consent statute, applies only where an officer effectuates a statutorily valid arrest, that statute precluded admission of the certificate of analysis at his trial. For the purposes of this opinion, we assume without deciding that Officer Weinstein did not have statutory authority to arrest appellant. See Code §§ 19.2-81 and 18.2-266. However, appellant’s conclusion that the implied consent statute precluded introduction of the certificate of analysis at his trial does not follow from this premise.⁴

Appellant’s analysis ignores a critical fact in the posture of this case—Officer Weinstein never read the implied consent law to appellant and did not obtain appellant’s consent to blow into the Intoxñyzer by informing him of the implied consent law. Instead, appellant volunteered to take the test before Officer Weinstein had even decided if he could use the implied consent law to obtain a breath sample from appellant. Appellant actually initiated the taking of the test and explicitly volunteered to take it before he could be informed of the implied consent statute.⁵

Code § 18.2-268.2(A) addresses when a person is deemed to consent to a breath test. The statute simply states:

Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway, as defined in § 46.2-100, in the 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 violation of § 18.2-266, 18.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance within three hours of the alleged offense.

Code § 18.2-268.2(A). In other words, a person driving on Virginia’s roads has implicitly consented to take a breath test, so officers can refer to this statute when they want to convince a driver to provide a sample for a breath test.⁶ This statute does not address all instances when a breath test may be taken and includes no language addressing the admissibility of the resulting certificates of analysis at trial. The statute contains no language addressing situations such as the one here, where a defendant actually volunteered to take the breath test before an officer could tell him about the implied consent statute. Where a driver asks to have a breath test taken, as occurred here, the statute on its face has no relevance. See Hubbard v. Henrico Ltd. Pshp., 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998) (courts should look to the plain language of statutes).

Appellant points to several Virginia appellate decisions that have addressed the admissibility of breath test certificates under Code § 18.2-268.2 and argues that these cases required the exclusion of the certificate of analysis in this case. However, these cases are clearly distinguishable and inapplicable here.

In Thomas v. Town of Marion, 226 Va. 251, 254, 308 S.E.2d 120, 122 (1983), Thomas was “not properly arrested” under the Code because the arresting officer did not have a warrant nor did he observe the accident that led to the misdemeanor charge. See Code § 19.2-81. After this arrest, the officer informed Thomas of the implied consent statute. 226 Va. at 253, 308 S.E.2d at 121. Later in the evening, Thomas was properly arrested pursuant to a warrant, but this arrest was more than two hours⁷ after the accident, and the administration of the breath test occurred after this second arrest. In finding that the trial court should have excluded the certificate of analysis from Thomas’s breath test, the Supreme Court explained:

Since the arrest was untimely, the defendant is not deemed to have consented to the testing of his breath under the “implied consent” law. Moreover, defendant’s actual consent in this case was invalid because it was based upon a belief, generated by the officer’s recitation of the law, that he was bound to submit to a test. Hence, receipt of the certificate in evidence was improper.

Id. at 254, 308 S.E.2d at 122 (emphasis added).

The Supreme Court did not conclude its analysis in Thomas, as appellant would now have us do, by simply finding that the arrest was unlawful or “untimely.” Instead, the Court specifically added that Thomas’s actual consent was invalid because the officer obtained that consent by informing Thomas that “he was bound to submit to a test,” when the law did not actually require that he provide a breath sample because the officer requested the sample more than two hours after the accident. Id. Here, in contrast, Officer Weinstein never informed appellant about the provisions of the implied consent statute nor had he even raised the issue of an Intoxilyzer test. Before the officer could even decide whether the provisions of the implied consent statute applied in this situation, appellant initiated this discussion by saying, without any previous mention of implied consent or of taking a breath sample for testing, that he wanted to take the Intoxilyzer test.

As appellant volunteered to provide the breath sample, without being influenced by the provisions of the implied consent law, those provisions are irrelevant here. Thomas, rather than supporting appellant’s argument, instead suggests that actual consent to take a breath test, without any reliance on the provisions of the implied consent statute, can produce an admissible certificate of analysis.

In Durant v. City of Suffolk, 4 Va.App. 445, 448, 358 S.E.2d 732, 734 (1987), the same basic sequence of events occurred as in Thomas—the officer arrested Durant without having statutory authority for the arrest, the officer then informed Durant of the implied consent law, and Durant subsequently submitted to a breath test. This Court, relying on Thomas, found the results of that test should have been excluded from the trial. Id. at 449, 358 S.E.2d at 734. Therefore, Durant simply reapplies the same test explained, supra, in Thomas.⁸

Thomas and Durant hold that a suspect cannot legitimately consent to a breath test if he is unlawfully or untimely arrested, the officer informs the suspect of the provisions of the implied consent law, and the suspect then consents to provide a breath sample under the mistaken belief that he could be penalized under the implied consent law for refusing to cooperate. See Bristol v. Commonwealth, 272 Va. 568, 574-75, 636 S.E.2d 460, 464 (2006) (A “driver’s timely arrest triggers the statutory consent requirement, [so] the arrest must be completed before the driver may be required to take the test.” (emphasis added)).⁹ These cases do not address the facts here, however, where the breath test was not obtained pursuant to that law. Here, independent of the implied consent law and without the officer ever telling him about Code § 18.2-268.2, appellant actually asked to take the test. Unlike the defendants in Durant and Thomas, appellant initiated the discussion here and, without being informed that he was presumed “to have consented to have samples” of his breath taken under Code § 18.2-268.2, appellant told the officer that he “wanted to blow” into the Intoxylizer. Unlike the officers in Durant and Thomas, Officer Weinstein did not use the implied consent statute to prod appellant into taking the breath test. Therefore, the provisions of Code § 18.2-268.2 do not operate to exclude the certificate here.

Other states have considered arguments similar to those raised by appellant in relation to statutes similar to Code § 18.2-268.2. In People v. Ward, 307 N.Y. 73, 120 N.E.2d 211 (1954), the police asked, in a “ ‘gentlemanly manner,’ ” if Ward would submit to a blood test, and he then agreed to the test without any mention by the police officers of the state’s implied consent law.¹⁰ The Court of Appeals of New York found the state’s implied consent law did not apply, and, therefore, the test’s results were admissible. Id. at 212-14. In Lunceford v. Northport, 555 So.2d 246, 247 (Ala.Crim.App. 1988), an officer arrested Lunceford as he sat in a car that was parked in a private parking lot. The officer then asked him if he was willing to take a breath test, “and he said yes.” Id. at 248. The Alabama appellate court agreed with Lunceford that the Alabama implied consent statute applied only when a person drove on public highways, so the statute did not require that Lunceford provide a breath sample to the police.¹¹ Id. However, rather than ruling that the results of the defendant’s test should have been excluded, the appellate court remanded the case for the trial court to determine if Lunceford’s agreement to take the test was voluntary—and, therefore, independent of the provisions of the Alabama implied consent statute. Id. at 249-50. The court held that, if Lunceford’s consent to take the test was involuntary, then he was entitled to a new trial; otherwise, he remained convicted of driving under the influence of alcohol. Id. at 250.

In addition, in State v. Wether ell, 82 Wash.2d 865, 514 P.2d 1069, 1073 (1973), the Washington appellate court found that defendant Wright¹² had “actually consented” to a breath test, although he was not arrested. The Washington implied consent statute, RCW § 46.20.380(1), was similar to our statute in that a person was “deemed to have given consent” to take the test if he drove on the public highways and if he was arrested for driving while intoxicated. Id. at 1071-72. The Washington court ruled that the provisions of the implied consent statute and its warnings were “superfluous” if the driver actually consented to take the test. Id. at 1072. As Wright had consented to take the test without recourse to the provisions of the implied consent statute, the court held that the results of his test were admissible. Id. at 1073. See also State v. Seager, 178 Neb. 51, 131 N.W.2d 676, 677-78 (1964) (“There is nothing in the present statutory conditions relative to implied consent which has the effect of changing the foundation requirements of the statutes for the admission of tests performed pursuant to the consent of the accused.”).

While the implied consent law provides an incentive for a driver to submit to a breath test, if an arresting officer does not discuss that law with a driver in order to obtain a breath sample, the provisions of Code § 18.2-268.2 are not implicated. As appellant here voluntarily provided the breath sample for the Intoxilyer test -without any recourse to the implied consent law, we find that Code § 18.2-268.2 did not apply here.¹³ Therefore, the trial court here correctly denied appellant’s motion.

The dissent points to other arguments, not made by appellant, to find that the trial court committed error here, contending that “[t]he mere fact that a breath test is voluntarily taken does not automatically render the results of that test admissible at trial.” We do not necessarily disagree.¹⁴ However, the dissent fails to recognize that appellant simply did not argue at trial, and does not argue on appeal, that Code § 18.2-268.9 or any other rule of evidence precluded introduction of the certificate of analysis here. As the issue was not argued at trial or on appeal, consideration of Code § 18.2-268.9 is inappropriate under Rule 5A:18 and Rule 5A:20.

Appellant argued only that Code § 18.2-268.2(A) itself, and particularly as interpreted in Durant and Thomas, precluded introduction of the certificate of analysis because the arrest was unlawful.¹⁵ Appellant in this appeal did not discuss any rules of evidence, but instead argued that the officer never had lawful authority to administer the test, as the issue was raised in Durant and Thomas. Although perhaps appellant should have argued that Code § 18.2-268.9 precluded introduction of the certificate here, assuming the dissent’s analysis is correct, nonetheless he never made this argument at trial or on appeal. Therefore, we do not consider its application here, especially as appellant also does not argue that the ends of justice require consideration of Code § 18.2-268.9. See Rule 5A:18; Singson v. Commonwealth, 46 Va.App. 724, 749 n. 10, 621 S.E.2d 682, 694 n. 10 (2005).

The dissent also contends that the majority opinion errs, claiming that “the objection made by appellant to the sufficiency of that foundation” preserved any objection to the certificate of analysis under Code § 18.2-268.9. However, again, appellant never argued that the certificate was inadmissible under Code § 18.2-268.9. Instead, he argued that the implied consent statute did not apply because the arrest was improper. Therefore, it is not surprising that the trial court based its ruling only on the objection made by appellant. The trial court was never asked to consider the question from the perspective presented by the dissent.

We agree with the dissent that the Commonwealth, as the proponent of the certificate of analysis, was required to respond to appellant’s arguments against admission of that evidence. However, the Commonwealth was not required to address every possible objection to the certificate’s admission, even arguments that were not presented by appellant. The Commonwealth was required only to answer the specific objections that appellant did make. See Wright v. Norfolk & W. Ry. Co., 245 Va. 160, 170, 427 S.E.2d 724, 729 (1993) (“[A] litigant will not be permitted to invite a trial court to commit error, either through agreeing or failing to object, and then be permitted to successfully complain of such error on appeal.” (emphasis added)); cf. Neal v. Commonwealth, 15 Va.App. 416, 422, 425 S.E.2d 521, 524-25 (1992) (explaining that the specifics of the objection are important to preserving an evidence issue for appeal). Therefore, whether or not the certificate of analysis here failed to meet the requirements of Code § 18.2-268.9 is irrelevant now on appeal. Appellant never made any objections based on that statute, so the Commonwealth was not required to prove that the certificate of analysis met the requirements of Code § 18.2-268.9. Therefore, the provisions of that statute do not affect our analysis here.

CONCLUSION

We find the officer did not need to resort to the implied consent law to obtain a breath sample because appellant explicitly consented to the breath test without being informed about the implied consent statute. Thus, as the officer did not rely upon Code § 18.2-268.2(A) to obtain the sample, that statute did not require the exclusion of the certificate of analysis here.

We find the trial court did not err in admitting the certificate into evidence, and, therefore, we affirm appellant’s conviction.

Affirmed.

1 . We review the evidence on appeal in the light most favorable to the party who prevailed below, here, the Commonwealth, and, therefore, also grant to the Commonwealth all reasonable inferences fairly deducible from the evidence. Sabo v. Commonwealth, 38 Va.App. 63, 69, 561 S.E.2d 761, 764 (2002).

2 . An Intoxilyzer is a machine used by the police to take a breath sample and test that sample for alcohol content.

3 . At trial, appellant also made a motion to suppress the evidence collected by Officer Weinstein, arguing that the officer effectuated the arrest without probable cause. The trial court denied this motion. Appellant requested appellate review of this ruling in his petition for appeal, but this Court did not grant his petition in relation to that question presented. Therefore, the issue of probable cause is not before us, and we may not examine the trial court’s finding that the officer had probable cause to arrest appellant. See Rules 5A:12 and 5A:15.

4 . Appellant does not ask this Court to apply the Fourth Amendment to suppress the certificate of analysis. At oral argument, appellant agreed that he was specifically arguing that the implied consent statute applied and that Code § 18.2-268.2 should have excluded the certificate of analysis. Appellant’s argument does not reference any general rule of evidence, however, but instead is based on a statutorily unlawful arrest. Therefore, his argument is more akin to a suppression motion than a hearsay or other evidentiary objection.

5 . At trial and on appeal, appellant did not argue that his willingness to submit to the test was involuntary or tainted in any way. He argued simply that the fact that the officer did not have authority to arrest him, together with the requirement that a lawful arrest precede a breath test taken under the implied consent statute, required that the trial court exclude the certificate of analysis from his Intoxilyzer test, even though appellant actually initiated the taking of the breath test himself without ever being informed of the provisions of the implied consent statute.

6 . Under Code § 18.2-268.3, a driver may be subjected to civil or criminal penalties for "unreasonably” refusing to take a breath or blood test pursuant to Code § 18.2-268.2.

7 . At the time of Thomas’s arrest, Code § 18.2-268, the precursor to the current implied consent statute, required that a suspect be arrested within two hours of an accident in order for the implied consent law to apply. The current statute extends the time to three hours. Code § 18.2-268.2(A). Appellant has never argued that the test was administered more than three hours after the accident.

8 . Another important distinction exists between this case and Durant. In Durant, the Court found the officer did not have probable cause to arrest Durant. 4 Va.App. at 448, 358 S.E.2d at 734. Here, the trial court found the officer had probable cause to arrest appellant (we presume in this opinion, supra, only that the officer did not have statutory authority to arrest him). That probable cause finding by the trial court is not subject to review here as the question of probable cause is not before us in this appeal. See supra footnotes 3 & 4.

9 . Under Code § 18.2-268.3, a driver unreasonably refusing to submit to a breath test can have his or her driver's license suspended for a year or more.

10 . At the time, Section 71-a of the New York Vehicle and Traffic Law provided, in part:

"1. Any person who operates a motor vehicle ... in this state shall be deemed to have given his consent to a chemical test of his breath, blood, urine, or saliva for the purpose of determining the alcoholic content of his blood provided that such test is administered at the direction of a police officer having reasonable grounds to suspect such person of driving in an intoxicated condition. If such person refuses to submit to such chemical test the test shall not be given but the commissioner shall revoke his license ... to drive____”

Ward, 120 N.E.2d at 212. The court found that it did not need to address Ward’s argument that the officers were required to apprise him of the provisions of the statute before administering the test "where, as here, the defendant voluntarily submitted to the test and there is no claim or hint of coercion.” Id. at 213.

11 . Section 32-5-192(a) of the Alabama Code states, in part:

Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given his consent, subject to the provisions of this division, to a chemical test or tests of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if lawfully arrested for any offense arising out of acts alleged to have been committed while the person was driving a motor vehicle on the public highways of this state while under the influence of intoxicating liquor.

12 . Wright’s and Wetherell’s appeals were consolidated.

13 . The record in this case contains no evidence that the officer ever read the implied consent law to appellant or that appellant had any knowledge of the statute prior to his submission to the breath test.

14 . We also do not necessarily agree that the certificate was inadmissible under Code § 18.2-268.9. We simply find that this discussion is precluded by Rules 5A:18 and 5A:20.

15 . Appellant's position seems to be that no test results are admissible if the arrest was unlawful, whether or not the results are otherwise admissible.