Timothy Jay Neatrour v. Commonwealth ( 2004 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Felton and McClanahan
Argued at Alexandria, Virginia
TIMOTHY JAY NEATROUR
MEMORANDUM OPINION* BY
v. Record No. 2090-03-4 JUDGE JEAN HARRISON CLEMENTS
SEPTEMBER 28, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
James H. Chamblin, Judge
David W. Deane (Albo & Oblon, LLP, on briefs), for appellant.
Margaret W. Reed, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
Timothy Jay Neatrour was convicted on his conditional guilty plea of driving under the
influence, third or subsequent offense within ten years, under Code § 18.2-266. On appeal,
Neatrour contends the trial court erred in finding at the suppression hearing that (1) the result of the
“preliminary breath test” (PBT) was admissible and (2) probable cause existed to arrest him.1
Finding no error, we affirm the trial court’s judgment.
As the parties are fully conversant with the record in this case and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The Honorable Thomas D. Horne presided at the hearing on Neatrour’s motion to
suppress.
I. BACKGROUND
The relevant facts are not in dispute. During the evening of September 1, 2002, Loudoun
County Sheriff’s Deputy Travis Westgate was on patrol when he observed Neatrour drive through a
red light. Westgate executed a traffic stop and approached Neatrour’s car on foot. When Neatrour
rolled down his window, Westgate detected the odor of alcohol emanating from Neatrour. In
response to Westgate’s inquiry, Neatrour initially claimed he had not been drinking that evening but
later admitted he had consumed “approximately two beers.” Neatrour consented to the performance
of field sobriety tests and stepped out of the car for that purpose. Westgate administered three field
sobriety tests. Neatrour satisfactorily completed the “finger dexterity” and backward-counting tests;
however, he was unable to complete a “nine-step walk and turn test” (step test) to the deputy’s
satisfaction, as two of his eighteen steps were not in a straight heel-to-toe line.
Deputy Westgate then asked Neatrour “if he wanted to take” a PBT, and Neatrour “said he
would submit to the test.” Before administering the PBT, Westgate read an “implied consent card”
to Neatrour. After administering the PBT and obtaining its result, Westgate arrested Neatrour for
driving under the influence. Neatrour “later registered a .09 on the Intoxilyzer tests.”
On December 9, 2002, a grand jury indicted Neatrour for driving under the influence, third
or subsequent offense within ten years, in violation of Code § 18.2-266.
Neatrour filed a pretrial motion to suppress the post-arrest Intoxilyzer test result, arguing
that Deputy Westgate did not have probable cause to arrest him for driving under the influence. The
Commonwealth filed a written response to Neatrour’s motion to suppress, arguing the deputy had
probable cause to arrest Neatrour because he ran a red light, smelled of alcohol, failed a field
sobriety test, and registered a blood-alcohol content of “0.116%” on the PBT.
At the suppression hearing, the trial judge indicated that the matter was before the court on
Neatrour’s motion to suppress for a determination of whether probable cause existed to arrest
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Neatrour. At the hearing, Neatrour objected to Deputy Westgate’s testimony concerning the results
of the PBT, arguing the reliability of the PBT had not been established because there was no
evidence the PBT machine had been calibrated. The court deferred ruling on the admissibility of
the PBT result pending development of the record by the prosecutor.
Responding to the prosecutor’s questions, Deputy Westgate described the procedure for
using the PBT machine to measure “the alcohol content in one’s breath” and explained how the
machine was reset before each use to clear any residual alcohol from the machine. He further
testified that, although he did not “know exactly how the science” of the machine worked, he was
trained to operate the PBT machine and, in the two and a half years since receiving that training, had
used it “many times” before administering the test to Neatrour. Westgate also explained that PBT
machines are submitted to an official in the sheriff’s department for calibration every six months
and are not reissued for use unless they are found to be accurate. He testified that the machine he
used to administer Neatrour’s PBT had been issued to him less than two months before that test.
Westgate further testified that, before administering the PBT, he informed Neatrour that,
[i]f he wished not to take the test[,] the test could not be used against
him at this time and it was just a preliminary test to measure the
alcohol content in his breath and see whether, in fact, he had
enough to where [the deputy] felt that he needed to be taken before
a magistrate.
The following exchange between the trial judge and counsel then occurred:
[PROSECUTOR]: At this time I’d ask the Court to accept
the reading of the [PBT] for the purpose of probable cause.
[DEFENSE COUNSEL]: I’d ask that I be allowed to voir
dire.
THE COURT: All right. I’m going to reserve ruling on [the
PBT result]. Why don’t you go ahead and put on your evidence and
then we’ll have cross-examination. The motion to suppress relates to
the issue of probable cause for the arrest and that includes the [PBT]
result[]. So I would prefer to move ahead as if this was on the
motion to suppress with an objection to the use of the [PBT result] as
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a foundation stone for the suppression of the later evidence as a result
of the arrest. Did you have other evidence?
[PROSECUTOR]: No, Your Honor. I guess I’m not sure
about the procedure.
THE COURT: This is on a motion to suppress.
[PROSECUTOR]: So the Court is not accepting the result.
THE COURT: That’s the issue. I’ll make a decision as to
whether or not there’s probable cause. I’m going to defer ruling until
counsel has had an opportunity to voir dire on the --
[PROSECUTOR]: I understand.
THE COURT: -- use of these results.
The questioning of Deputy Westgate then continued. On cross-examination, when asked by
defense counsel if, after informing Neatrour that he was not required to take the PBT and that it was
strictly “for the benefit of probable cause,” he told Neatrour that the result of the PBT “could not be
used against him in [c]ourt,” Westgate responded, “Correct.”
At the conclusion of the evidence, Neatrour’s counsel argued the PBT result was
inadmissible because its reliability was not established and Deputy Westgate improperly told
Neatrour that the PBT result would not be used against him “in court,” rather than “in any
prosecution,” as required by Code § 18.2-267. Thus, defense counsel’s argument continued, the
evidence did not establish the existence of probable cause to arrest Neatrour for driving under the
influence.
The prosecutor responded that the evidence showed that the PBT machines were checked
and calibrated regularly and that Deputy Westgate was trained to properly operate the machine. The
prosecutor further argued that, under Stacy v. Commonwealth, 22 Va. App. 417, 470 S.E.2d 584
(1996), the PBT result was admissible at a suppression hearing for the specific purpose of
determining whether the officer had probable cause to make an arrest. Thus, the prosecutor
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concluded, the PBT result and the evidence that Neatrour ran a red light, had an odor of alcohol
about his person, admitted that he had been drinking that evening, and failed one of the field
sobriety tests were sufficient to establish probable cause.
After considering Deputy Westgate’s testimony and counsel’s argument, the trial court
found that the machine used by Westgate to administer the PBT to Neatrour had been calibrated and
checked for accuracy and that Westgate had properly cleared it before administering the test to
Neatrour. Noting that Neatrour’s running of the red light, the odor of alcohol about his person, his
failure to satisfactorily complete one of the field sobriety tests, and the PBT result were all factors in
the overall totality-of-the-circumstances probable cause analysis, the court ruled that Deputy
Westgate had probable cause to arrest Neatrour. Specifically regarding the admissibility of the PBT
result, the trial judge stated as follows:
The Court will, consistent with Stacy, permit the [PBT result]
to form the basis of a probable cause determination. In that
connection, the Court believes the advice that was given by the
officer certainly was in substantial compliance with the requirements
of [Code § 18.2-267(F)]. The Court will deny the motion to
suppress.
Although the court determined that the PBT result was admissible, the actual numerical result of the
PBT was not introduced into evidence at the hearing. Neatrour made no further objections or
arguments with respect to any of the trial court’s rulings.
Neatrour subsequently entered a conditional guilty plea to driving under the influence, third
or subsequent offense within ten years, reserving his right to appeal the trial court’s denial of his
motion to suppress. This appeal followed Neatrour’s subsequent conviction.
II. ANALYSIS
In reviewing the denial of a motion to suppress, we view the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.
See Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). At a hearing
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on a defendant’s motion to suppress, the Commonwealth has the burden of showing that a
warrantless arrest was constitutionally permissible. See Jackson v. Commonwealth, 267 Va. 666,
673, 594 S.E.2d 595, 598 (2004). However, the appellant has the burden on appeal of showing that
the trial court’s denial of the motion to suppress “‘constituted reversible error.’” McGee v.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).
A. Admissibility of the PBT Result
Neatrour contends the result of the PBT was not admissible because the reliability of the test
was not established and Deputy Westgate misadvised him of the implied consent law by telling him
that the PBT result would not be used against him “in court,” rather than “in any prosecution.”
Thus, Neatrour concludes, the trial court erred in finding the PBT result admissible. We disagree.
“The admissibility of evidence is within the broad discretion of the trial court, and a ruling
will not be disturbed on appeal in the absence of an abuse of discretion.” Blain v. Commonwealth,
7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).
Code § 18.2-267, which governs the administration of a PBT, provides, in pertinent part,
as follows:
A. Any person who is suspected of [driving under the
influence] shall be entitled, if such equipment is available, to have
his breath analyzed to determine the probable alcoholic content of
his blood. . . .
* * * * * * *
C. Any person who has been stopped by a police officer
. . . or by any member of a sheriff's department and is suspected by
such officer to be guilty of [driving under the influence], shall have
the right to refuse to permit his breath to be so analyzed, and his
failure to permit such analysis shall not be evidence in any
prosecution [for driving under the influence].
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D. Whenever the breath sample analysis indicates that
alcohol is present in the person’s blood, the officer may charge the
person with [driving under the influence] . . . .
E. The results of the breath analysis shall not be admitted
into evidence in any prosecution [for driving under the influence],
the purpose of this section being to permit a preliminary analysis
of the alcoholic content of the blood of a person suspected of
[driving under the influence].
F. Police officers or members of any sheriff’s department
shall, upon stopping any person suspected of [driving under the
influence], advise the person of his rights under the provisions of
this section.
Thus, under Code § 18.2-267, any person suspected by a police officer of driving under the
influence is entitled to a PBT, and the officer must advise the suspect of his rights. If the PBT
reveals that alcohol is present in the suspect’s blood, the officer may arrest the suspect for
driving under the influence, but the result of the PBT is not admissible at trial to prove the
suspect’s guilt.
However, “we have held that the results of the preliminary breath test may be admitted
into evidence at a pretrial probable cause or suppression hearing.” Woolridge v.
Commonwealth, 29 Va. App. 339, 347, 512 S.E.2d 153, 157 (1999) (citing Stacy, 22 Va. App. at
423, 470 S.E.2d at 587). This is so because “the legislature has recognized that [a preliminary
breath] test is reasonably trustworthy to show that a person has consumed alcohol for purposes of
determining whether probable cause exists to make an arrest.” Stacy, 22 Va. App. at 421, 470
S.E.2d at 586.
Here, the pretrial suppression hearing was conducted solely to determine whether Deputy
Westgate had probable cause to arrest Neatrour. At that hearing, no evidence was offered to show
that the PBT administered to Neatrour was an untrustworthy or otherwise unreliable indicator of
whether he had consumed alcohol for purposes of determining probable cause. To the contrary,
Deputy Westgate testified that he had been trained on the use of the PBT machine and that, at the
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time of the arrest, he had over two years of experience administering the test in the field. He further
testified that the PBT machines were regularly calibrated and checked for accuracy every six
months, that the machine he used to administer the subject test had been issued to him only two
months prior to the test, and that, as part of the standard operating procedure in administering a
PBT, he cleared the machine before using it to ensure it was not contaminated by any residual
alcohol from a previous test. This evidence amply supports the trial court’s finding that the machine
used by Westgate to administer the PBT had been calibrated and checked for accuracy and that
Westgate had properly administered the test. We cannot say, therefore, that the PBT administered
to Neatrour was not reasonably trustworthy to show that he had consumed alcohol for purposes of
determining whether Westgate had probable cause to arrest him. Accordingly, we reject Neatrour’s
claim that the PBT result was inadmissible because the reliability of the PBT was not established.
Likewise, we reject Neatrour’s claim that the result of the PBT was inadmissible because
Deputy Westgate failed to properly advise him of his rights regarding the PBT. As we noted in
Stacy, “[t]he requirement [in Code § 18.2-267(F)] that the officer must advise the suspect that
the [PBT] results cannot be ‘admitted into evidence in any prosecution’ merely informs the
person that the test results will not be considered in determining guilt or innocence.” 22
Va. App. at 423, 470 S.E.2d at 587 (emphasis added) (quoting Code § 18.2-267(E)).
Here, the trial court found that Deputy Westgate satisfied the requirement in Code
§ 18.2-267(F) that he advise Neatrour of his rights under Code § 18.2-267. The evidence supports
this finding. Before administering the PBT to Neatrour, Westgate read an “implied consent card” to
him. Although, Westgate did not state at the hearing precisely what that “implied consent card”
said, he explained that he informed Neatrour that,
[i]f he wished not to take the test[,] the test could not be used against
him at this time and it was just a preliminary test to measure the
alcohol content in his breath and see whether, in fact, he had
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enough to where [the deputy] felt that he needed to be taken before
a magistrate.
Asked by defense counsel if, after informing Neatrour that he was not required to take the PBT and
that it was strictly “for the benefit of probable cause,” he told Neatrour that the result of the PBT
“could not be used against him in [c]ourt,” Westgate replied, “Correct.” The trial court could
properly infer from this evidence that Westgate correctly informed Neatrour that the PBT result
would be used against him only to determine whether the deputy had probable cause to arrest
Neatrour and would not be used against him at trial to determine his guilt or innocence. We hold,
therefore, that the deputy’s inartful testimony at the hearing does not eviscerate Neatrour’s
consent to submit to the PBT.
B. Determination of Probable Cause
Neatrour contends the trial court improperly relied on the PBT result, which was never
introduced into evidence at the suppression hearing, to find that probable cause existed. He also
contends that there were insufficient “indicators of intoxication to show that probable cause existed
to arrest [him] for driving under the influence.” Thus, Neatrour concludes, the trial court erred in
finding that Deputy Westgate had probable cause to arrest him. We disagree.
Neatrour raises his first contention—that the trial court could not rely on the PBT result to
determine probable cause because the PBT result was never actually admitted into evidence—for
the first time on appeal. Rule 5A:18 provides, in pertinent part:
No ruling of the trial court . . . will be considered as a basis
for reversal unless the objection was stated together with the grounds
therefor at the time of the ruling . . . . A mere statement that the
judgment or award is contrary to the law and the evidence is not
sufficient to constitute a question to be ruled upon on appeal.
(Emphasis added). Pursuant to Rule 5A:18, we “will not consider an argument on appeal [that] was
not presented to the trial court.” Ohree v. Commonwealth, 25 Va. App. 299, 308, 494 S.E.2d 484,
488 (1998).
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Under this rule, a specific argument must be made to the trial court at
the appropriate time, or the allegation of error will not be considered
on appeal. A general argument or an abstract reference to the law is
not sufficient to preserve an issue. Making one specific argument on
an issue does not preserve a separate legal point on the same issue for
review.
Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc). Thus,
preserving one argument on sufficiency of the evidence does not allow argument on appeal
regarding other sufficiency questions. See Clark v. Commonwealth, 30 Va. App. 406, 411-12, 517
S.E.2d 260, 262 (1999). Moreover, the same specific argument must have been raised at trial
before we may consider it on appeal. See Buck v. Commonwealth, 247 Va. 449, 452-53, 443
S.E.2d 414, 417 (1994) (holding that appellant’s failure to raise the same arguments “before the trial
court precludes him from raising them for the first time on appeal”); Floyd v. Commonwealth, 219
Va. 575, 584, 249 S.E.2d 171, 176 (1978) (holding that only the same specific sufficiency argument
presented to the trial court may be considered on appeal). The purpose of these rules is to ensure
that the trial court and opposing party are given the opportunity to intelligently address, examine,
and resolve issues in the trial court, thus avoiding unnecessary appeals. See Lee v. Lee, 12 Va. App.
512, 514, 404 S.E.2d 736, 737 (1991); Kaufman v. Kaufman, 12 Va. App. 1200, 1204, 409 S.E.2d
1, 3-4 (1991).
Here, after considering the evidence and argument presented at the suppression hearing, the
trial court found that the result of the PBT was admissible and that, based on the PBT result and
other indicia of intoxication, the deputy had probable cause to arrest Neatrour. Neatrour raised no
objection to the trial court’s reliance, in finding probable cause existed, upon the PBT result even
though that result had not been introduced into evidence. The trial court noted Neatrour’s
previously raised exceptions to the court’s ruling, but at no point did Neatrour indicate to the trial
court that the court could not properly rely on the PBT result because it was not in evidence. Thus,
the trial court was never advised of the claim Neatrour now makes on appeal and had no
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opportunity to address or resolve that issue. Hence, we find Neatrour did not preserve the issue for
appeal.
Moreover, our review of the record reveals no reason to invoke the “good cause” or “ends of
justice” exceptions to Rule 5A:18. Clearly, Neatrour had the opportunity to raise the issue
following the trial court’s ruling but simply failed to do so. See M. Morgan Cherry & Assocs. v.
Cherry, 38 Va. App. 693, 701, 568 S.E.2d 391, 396 (2002) (en banc) (holding that the “good
cause” exception to Rule 5A:18 will not be invoked where appellant had the opportunity to raise
claim below). Likewise, it is clear from the record, including the discussions between the trial
judge and counsel at the suppression hearing, that it was evident to the court by way of
reasonable inference that Deputy Westgate charged Neatrour with driving under the influence
based on getting a positive PBT result from Neatrour and that, if admissible, the PBT result
would serve as a basis for finding that probable cause existed. See Mounce v. Commonwealth, 4
Va. App. 433, 436, 357 S.E.2d 742, 744 (1987) (holding that, to invoke the ends of justice
exception to Rule 5A:18, the record must “affirmatively show[] that a miscarriage of justice has
occurred, not . . . merely . . . that a miscarriage might have occurred”).
We hold, therefore, that Neatrour is barred by Rule 5A:18 from raising this issue for the first
time on appeal.
We further hold that the evidence presented at the suppression hearing was sufficient to
establish that Deputy Westgate had probable cause to arrest Neatrour.
“[A]n assertion that the police lacked probable cause to arrest a defendant presents a
question of both law and fact, which is reviewed de novo on appeal.” McCain v. Commonwealth,
261 Va. 483, 489, 545 S.E.2d 541, 545 (2001); see Ornelas v. United States, 517 U.S. 690, 699
(1996). However, “we are bound by the trial court’s findings of historical fact unless ‘plainly
wrong’ or without evidence to support them and we give due weight to the inferences drawn from
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those facts by resident judges and local law enforcement officers.” McGee, 25 Va. App. at 198, 487
S.E.2d at 261 (citing Ornelas, 517 U.S. at 699).
“‘Probable cause exists when the facts and circumstances within the
officer’s knowledge, and of which he has reasonably trustworthy
information, alone are sufficient to warrant a person of reasonable
caution to believe that an offense has been or is being committed.’”
By providing in Code § 18.2-267 that the officer may charge an
individual with driving while intoxicated on the basis of the results of
a preliminary breath test, the legislature has recognized that this test
is reasonably trustworthy to show that a person has consumed
alcohol for purposes of determining whether probable cause exists to
make an arrest.
Stacy, 22 Va. App. at 421, 470 S.E.2d at 586 (quoting Jones v. Commonwealth, 18 Va. App. 229,
231, 443 S.E.2d 189, 190 (1994) (quoting Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d
833, 836 (1981))). “The function of the preliminary breath test under Code § 18.2-267 is to provide
an independent means to determine and resolve questions concerning probable cause, but it does not
supplant other methods for a police officer to determine probable cause.” Jones v. Town of Marion,
28 Va. App. 791, 795, 508 S.E.2d 921, 923 (1999). Under Code § 18.2-267(D), an officer may
charge an individual with driving under the influence “[w]henever the breath sample analysis
indicates that alcohol is present in the person’s blood.” Code § 18.2-266 prohibits a person from
driving or operating a motor vehicle “while such person is under the influence of alcohol.”
Here, the trial court could reasonably infer, as fact finder, that the PBT administered to
Neatrour indicated to Deputy Westgate that Neatrour had alcohol present in his blood. In addition
to that indication of intoxication, the evidence also established that Westgate knew from his own
observations that Neatrour ran a red light, smelled of alcohol, admitted to having had
“approximately two beers,” and failed a field sobriety test. We conclude that these circumstances
are sufficient to warrant a person of reasonable caution to believe that Neatrour had been driving
under the influence.
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Accordingly, we hold that the trial court did not err in finding that Deputy Westgate had
probable cause to arrest Neatrour for driving under the influence.
III. CONCLUSION
For these reasons, we affirm the trial court’s judgment and Neatrour’s conviction.
Affirmed.
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