Lester Lynn Leonard v. County of Spotsylvania ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Bray
Argued at Richmond, Virginia
LESTER LYNN LEONARD
MEMORANDUM OPINION *
v. Record No. 2089-96-2 BY JUDGE JOSEPH E. BAKER
JUNE 3, 1997
COUNTY OF SPOTSYLVANIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
William H. Ledbetter, Jr., Judge
Carroll E. Smith for appellant.
John C. Bowers (William F. Neely,
Commonwealth's Attorney, on brief), for
appellee.
Lester Lynn Leonard (appellant) appeals from his bench trial
conviction by the Circuit Court of Spotsylvania County for
driving under the influence of alcohol in violation of County
Ordinance § 12-86, which parallels Virginia Code § 18.2-266. The
sole issue presented by this appeal is whether the trial court
erred when it denied appellant's motion to suppress the
certificate of blood alcohol analysis tendered by the
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prosecution.
Appellant and Corporal T.G. Benton of the Spotsylvania
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
In appellant's petition for appeal, he raised only this
issue. In his brief, appellant raises additional issues. Rule
5A:12(c) provides that "only questions presented in the petition
for appeal will be noticed by the Court of Appeals." See Cruz v.
Commonwealth, 12 Va. App. 661, 664, n.1, 406 S.E.2d 406, 407 n.1
(1991). We did not grant appellant an appeal on the additional
issues raised in his brief and will not address them.
County Sheriff's Department gave conflicting statements on the
issue appellant deemed relevant. Appellant asserts that he
consented to take a breath test as provided in Code § 18.2-268.2
and was taken to the County Sheriff's office where a breathalyzer
was usually available. However, it was determined that the
breathalyzer was malfunctioning, and a valid test could not be
administered. Appellant testified that he was then transported
to a magistrate where Benton obtained an arrest warrant.
Corporal Benton confirmed that the breathalyzer in the
sheriff's office was malfunctioning but declared that, to the
best of his recollection, he then took appellant to the
Fredericksburg police station where he administered an accurate
test which revealed appellant's blood alcohol concentration of
0.11. He testified further that he then appeared before the
magistrate and obtained the arrest warrant. However, the arrest
warrant contains a "time issued" of 12:34 a.m., and the
certificate of analysis discloses a "time sample taken" of 1:08
a.m. Notwithstanding this discrepancy, Benton insisted that, to
the best of his recollection, the warrant was not obtained until
after the breath test was administered.
In reviewing a trial court's denial of a motion to suppress,
"[t]he burden is upon [the appellant] to show that this ruling,
when the evidence is considered most favorably to the
Commonwealth, constituted reversible error." Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980). We
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"review findings of historical fact only for clear error and
. . . give due weight to inferences drawn from those facts by
resident judges and local law enforcement officers." Ornelas v.
United States, 116 S. Ct. 1657, 1663 (1996).
The record supports the trial court's conclusion that Benton
administered the test before he obtained the warrant. The trial
court obviously accepted Benton's account of the events and
observed that the arrest warrant showed it was executed at
1:25 a.m. We find no error in the ruling.
Moreover, we review de novo the ultimate questions of
reasonable suspicion and probable cause. See id. Viewed
accordingly, the record discloses that Benton stopped appellant
after observing appellant weaving his car across the center line.
Appellant had a strong odor of alcohol about his breath and
performed poorly on several field sobriety tests. While
appellant initially denied that he had been drinking, he
subsequently admitted he had "a couple of beers." Upon further
questioning, appellant angrily stated that he had consumed twelve
beers and three Jim Beam and cokes and admitted being drunk.
Even if we were to accept appellant's assertion that the
warrant was issued prior to the breathalyzer test, he has
suffered no harm. Where an officer has probable cause to obtain
an arrest warrant for driving under the influence, there is no
legal requirement that the officer administer a breathalyzer test
before obtaining the arrest warrant. The record supports that
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the arresting officer had probable cause to procure the arrest
warrant even before administering the test.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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