Ronald Eugene Crewey v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia
RONALD EUGENE CREWEY
MEMORANDUM OPINION * BY
v. Record No. 1288-97-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 22, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
A. Dow Owens, Judge Designate
Robert M. Galumbeck (Michael E. Untiedt;
Dudley, Galumbeck & Simmons, on brief), for
appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Ronald Eugene Crewey (appellant) was convicted in a jury
trial of driving under the influence of alcohol in violation of
Code § 18.2-266. The sole issue in this appeal is whether the
trial court erroneously admitted testimony regarding appellant's
taking of an alkasensor test. For the following reasons, we
affirm the conviction.
I.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
S.E.2d 677, 678 (1997).
During trial, the Commonwealth introduced evidence that
appellant was offered and agreed to take an alkasensor test.
After Trooper Paul Lunsford (Lunsford) administered the test, he
called Trooper Eddie Whitt (Whitt) over to his car and showed him
the results. Whitt testified that he saw the results of the
test, which formed a part of his basis for making the arrest. 1
Whitt did not state the actual results indicated on the
alkasensor device. Appellant was subsequently arrested for
driving under the influence of alcohol in violation of Code
2
§ 18.2-266.
Code § 18.2-267, which governs the alkasensor test, provides
in part:
A. Any person who is suspected of [driving
while intoxicated] shall be entitled, if such
equipment is available, to have his breath
analyzed to determine the probable alcoholic
content of his blood. . . .
* * * * * * *
D. Whenever the breath sample analysis
indicates that alcohol is present in the
person's blood, the officer may charge the
1
The following testimony occurred:
Q. Trooper Whitt, did Trooper Lunsford show you the
results of the preliminary analysis?
A. Yes, he did.
Q. Did that form part of your basis for making this
arrest?
A. Yes, it did.
2
Appellant was also arrested for speeding in violation of
Code § 46.2-870. At trial, he pled guilty to the speeding charge
and that conviction is not before us.
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person with [driving while
intoxicated]. . . .
E. The results of the breath analysis shall
not be admitted into evidence in any
prosecution [for driving while intoxicated],
the purpose of this section being to permit a
preliminary analysis of the alcoholic content
of the blood of a person suspected of having
violated the provisions of § 18.2-266 or
§ 18.2-266.1.
F. Police officers or members of any
sheriff's department shall, upon stopping any
person suspected of having violated the
provisions of § 18.2-266 or § 18.2-266.1,
advise the person of his rights under the
provisions of this section.
Under this section, any person suspected of driving while
intoxicated is entitled to a breath analysis test, and the
officer must advise the suspect of his rights. If the breath
analysis reveals that alcohol is present in the suspect's blood,
the police officer may arrest the suspect, but the results of the
analysis are not admissible at trial to prove guilt.
In the instant case, the parties agree that the results of
the alkasensor test were not admissible to prove appellant's
guilt. However, appellant argues that any reference to the
alkasensor test by the Commonwealth during the trial constituted
reversible error. Applying this rationale, he contends that the
trial court erred in allowing into evidence testimony that he
took the alkasensor test and that Trooper Whitt saw the results.
We disagree.
The purpose of Code § 18.2-267 is "to permit a preliminary
analysis of the alcoholic content of the blood of a person
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suspected of [driving while intoxicated] and to authorize the
officer to charge an accused who tests positive, but to not allow
the test results to be admitted as evidence of guilt." Stacy v.
Commonwealth, 22 Va. App. 417, 423, 470 S.E.2d 584, 587 (1996)
(internal quotations omitted). "By providing an immediate
chemical test at the scene, the suspected driver and the
suspecting officer are provided an impartial arbitrator and
whether the suspicion of driving under the influence is well
grounded is made clear for the benefit of both." Wohlford v.
Commonwealth, 3 Va. App. 467, 471, 351 S.E.2d 47, 49 (1986).
Under the express terms of the statute, the Commonwealth is
required to offer the alkasensor test to the suspect if such
equipment is available. Indeed, we recognized in Wohlford that
Code § 18.2-267(F) "clearly reflects a legislative policy that
law enforcement officers inform a suspect of his rights under
this section." Id. While Code § 18.2-267(D) explicitly
prohibits introduction of the results of an alkasensor test,
there is nothing in the statute that bars evidence that the
accused was offered and took the preliminary test.
In the present case, the Commonwealth introduced evidence
that it had complied with the statutory requirements by offering
appellant the alkasensor test. The fact that the alkasensor
indicated alcohol was in appellant's blood was only one of
the factors which formed the basis of appellant's arrest.
Trooper Whitt also observed appellant driving erratically in
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excess of 80 miles-per-hour in a 65 miles-per-hour zone. After
the initial stop, Whitt observed appellant twice overlook his
driver's license as he searched through his wallet for it. Whitt
also noticed several half empty liquor bottles in appellant's
car, and one of them had his name written on it. Additionally,
appellant steadied himself by leaning against the car and he
smelled of alcohol. Likewise, Trooper Lunsford testified that
appellant was flushed, was unsteady on his feet, and smelled of
alcohol. The record is clear, however, that neither trooper
testified what the results of the alkasensor were. Finding no
error, we affirm appellant's conviction.
Affirmed.
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