Carvin Calhoun v. Commonwealth of Virginia , 35 Va. App. 506 ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Overton
Argued at Alexandria, Virginia
CARVIN CALHOUN
OPINION BY
v. Record No. 2006-00-4 JUDGE NELSON T. OVERTON
MAY 22, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jonathan C. Thacher, Judge
Michael H. Cantrell for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Carvin Calhoun, appellant, appeals his felony conviction of
driving while intoxicated, third offense within ten years, in
violation of Code §§ 18.2-266 and 18.2-270. The issue on appeal
is whether the trial court erred by allowing the Commonwealth to
cross-examine appellant about his refusal to take the required
breath or blood test. Finding that evidence of appellant's
refusal to take the required test constituted improper rebuttal
of appellant's testimony, the judgment of the trial court is
reversed.
FACTS
Appellant stopped at a sobriety checkpoint in Fairfax
County. Officer D.C. Decoster approached appellant's vehicle
and smelled alcohol emanating from appellant. Decoster noticed
appellant had bloodshot eyes, "disarranged" clothing, and
slurred speech. Appellant fumbled with his wallet and could not
produce a driver's license. Appellant did not respond to
Decoster's inquiries about where appellant had been and whether
he had consumed any alcohol. Decoster asked appellant to exit
his vehicle and perform some field sobriety tests. Appellant
failed to perform the tests to Decoster's satisfaction.
Decoster arrested appellant for driving while intoxicated, and
appellant refused to submit to a blood or breath test.
Prior to trial, appellant made a motion in limine to
prevent the Commonwealth from presenting evidence of appellant's
refusal to take the blood or breath test. The trial court
granted the motion and limited the Commonwealth's use of
evidence of appellant's refusal to "rebuttal."
At trial, appellant testified in his own behalf. Appellant
stated he had consumed one-half a glass of wine with dinner that
evening, eight hours before the stop. The trial court then
allowed the Commonwealth to cross-examine appellant about his
refusal to take the blood or breath test, stating that
appellant's assertion that he was not intoxicated "opened the
door" to evidence of his refusal.
ANALYSIS
"As a general rule, a litigant is entitled
to introduce all competent, material, and
relevant evidence tending to prove or
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disprove any material issue raised, unless
the evidence violates a specific rule of
admissibility." "Evidence is admissible if
it is both relevant and material," and it is
inadmissible if it fails to satisfy either
of these criteria. "Evidence is relevant if
it has any logical tendency, however slight,
to establish a fact at issue in the case."
"Evidence is material if it relates to a
matter properly at issue."
Peeples v. Commonwealth, 28 Va. App. 360, 365, 504 S.E.2d 870,
873 (1998) (citations omitted).
Code § 18.2-268.10 addresses the admissibility of evidence
pertaining to a person's refusal to take a blood or breath test:
The failure of an accused to permit a blood
or breath sample to be taken to determine
the alcohol or drug content of his blood is
not evidence and shall not be subject to
comment by the Commonwealth at the trial of
the case, except in rebuttal; nor shall the
fact that a blood or breath test had been
offered the accused be evidence or the
subject of comment by the Commonwealth,
except in rebuttal.
This section makes such evidence immaterial, or not a proper
issue, in a driving under the influence prosecution, except in
the case where a defendant raises the issue. In such an
instance, evidence of a refusal to take a test becomes material
for rebuttal. However, evidence of the refusal must be relevant
to the material issue raised by the defendant's evidence.
"[A] request to take the [mandatory] breath test . . .
proves nothing about appellant's guilt or innocence." Hammond
v. Commonwealth, 17 Va. App. 565, 568, 439 S.E.2d 877, 879
(1994). It follows that the refusal to take the test also has
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no probative value as to guilt or innocence. "Therefore, the
evidence is not relevant[,]" id., or material, except in
rebuttal when the defendant raises an issue pertaining to the
offer of, or failure to take, the test.
Here, appellant stated he consumed one-half a glass of wine
eight hours before the stop. He also testified he was not
intoxicated. Therefore, the only material issue raised by
appellant was the amount of alcohol consumed and whether he was
intoxicated.
Rebuttal evidence is "[e]vidence offered to disprove or
contradict the evidence presented by an opposing party."
Black's Law Dictionary 579 (7th ed. 1999). Evidence that
appellant refused to take the test does not disprove or
contradict his testimony that he was not intoxicated. Nor does
such evidence prove he consumed a greater amount of alcohol.
Accordingly, evidence of appellant's refusal to take the test
was not relevant to the material issue raised by his testimony.
Only evidence that bears on the facts asserted in appellant's
testimony would rebut that testimony. Such evidence might have
included evidence of his performance on field sobriety tests and
the officer's common observations of appellant's speech and
physical appearance. The refusal itself, however, did not rebut
or disprove appellant's testimony, and, therefore, was not
admissible. Merely testifying in one's own behalf does not
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"open the door" to evidence of a refusal to take the mandatory
breath or blood test.
For the above stated reasons, the judgment of the trial
court is reversed and remanded for further proceedings should
the Commonwealth be so advised.
Reversed and remanded.
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