Joseph Simon Cook v. Town of Wytheville ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Elder and Fitzpatrick
Argued at Salem, Virginia
JOSEPH SIMON COOK
v. Record No. 0326-94-3 MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
TOWN OF WYTHEVILLE JULY 18, 1995
FROM THE CIRCUIT COURT OF WYTHE COUNTY
Willis A. Woods, Judge
Randolph D. Eley, Jr., for appellant.
No brief or argument for appellee.
Joseph Simon Cook (appellant) was convicted in a bench trial
of driving under the influence, second offense, in violation of
Wythe County Code § 8-4 and Virginia Code § 18.2-266. On appeal,
he contends that the trial court erred in finding that: (1) he
was in the presence of the magistrate when the police officer
testified about the circumstances of the arrest, and (2) he was
arrested within two hours of the time of the offense as required
by Code § 18.2-268.2(A). For the reasons that follow, we affirm
the conviction.
BACKGROUND
On August 1, 1993, Officer James Harrington (Harrington) of
the Town of Wytheville Police Department saw appellant driving in
the Town of Wytheville. At 12:47 a.m., appellant made a wide
*
Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
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turn and the front wheel of his car crossed into the on coming
lane. Harrington stopped appellant at 12:51 a.m., detected the
smell of alcohol on his breath, and conducted several field
sobriety tests. Harrington testified that he arrested appellant
at 1:02 a.m., but on cross-examination, Harrington agreed that
the time of arrest may have been a few minutes later at 1:09 to
1:10 a.m. Harrington's notes prepared that morning indicated
that appellant was arrested at 1:02 a.m.
After arresting appellant, Harrington took him to the
magistrate's office. Harrington testified that he and appellant
were both present before the magistrate, whose office had a
window that opened into a narrow hallway. Harrington stopped at
the window, and appellant was either standing within one to two
feet or was seated on a bench directly across from the window.
Harrington stated: "He and I were together. He was in my
presence when I explained to her (the magistrate) what happened.
As I recall we were both in the hallway together at the open
window, which does not have a glass." The magistrate issued the
warrant at 1:20 a.m.; the breath test analysis was conducted
after the issuance of the warrant at 1:59 a.m.; and Harrington
executed the warrant at 2:03 a.m. Appellant testified that he
did not make eye contact with the magistrate before the breath
test and that he was not present when the officer told the
magistrate about the offense.
RIGHT TO APPEAR BEFORE THE MAGISTRATE
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Appellant argues that he was not "brought forthwith before a
magistrate" because he did not have the opportunity to speak with
the magistrate and was not in the magistrate's line of vision.
We disagree.
Code § 19.2-82 provides as follows:
A person arrested without a warrant
shall be brought forthwith before a
magistrate or other issuing authority having
jurisdiction who shall proceed to examine the
officer making the arrest under oath. . . .
As used in this section the term
"brought before a magistrate or other issuing
authority having jurisdiction" shall include
a personal appearance before such authority
or any two-way electronic video and audio
communication meeting the requirements of
§ 19.2-3.1, in order that the accused and the
arresting officer may simultaneously see and
speak to such magistrate or authority.
"In the absence of clear evidence to the contrary, courts may
presume that public officers have properly discharged their
official duties." Robertson v. Commonwealth, 12 Va. App. 854,
856-57, 406 S.E.2d 417, 418 (1991). "'The finding of the judge,
upon the credibility of the witnesses and the weight to be given
their evidence, stands on the same footing as the verdict of a
jury, and unless that finding is plainly wrong, or without
evidence to support it, it cannot be disturbed.'" Yates v.
Commonwealth, 4 Va. App. 140, 143, 355 S.E.2d 14, 16 (1987)
(quoting Lane v. Commonwealth, 184 Va. 603, 611, 35 S.E.2d 749,
753 (1945)).
When viewed in the light most favorable to the Commonwealth,
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the evidence established that Harrington and appellant were both
present before the magistrate when Harrington explained the basis
for the arrest. Appellant was in a narrow hallway, either
standing within one to two feet of Harrington or seated on a
bench directly across from the magistrate's window. The trial
judge did not abuse his discretion in accepting Harrington's
testimony and not that of appellant.
TIME OF ARREST
Appellant also argues that the Commonwealth failed to prove
that he was arrested within two hours of the offense as required
by Code § 18.2-268.2(A). If he was not arrested within the
two-hour time limit, then he cannot be deemed to have consented
to the breath test, and the certificate of analysis was
inadmissible.
Code § 18.2-268.2(A) provides as follows:
Any person, whether licensed by Virginia
or not, who operates a motor vehicle upon a
highway, as defined in § 46.2-100, in this
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 or of a similar ordinance within
two hours of the alleged offense.
(Emphasis added). The "alleged offense" in a drunk driving case
is the conduct of operating a vehicle on a public highway while
under the influence of alcohol. Overbee v. Commonwealth, 227 Va.
238, 242, 315 S.E.2d 242, 244 (1984).
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The record in this case established that Harrington saw
appellant driving at 12:47 a.m. and stopped him at 12:51 a.m.
Neither of these times was questioned by appellant on cross-
examination. Thus, the two-hour time limit must be measured from
the 12:47 a.m. time. Harrington's notes reflected a time of
arrest of 1:02 a.m., but on cross-examination, appellant showed
that the time of arrest could have been closer to 1:09 or 1:10
a.m. The magistrate issued an arrest warrant at 1:59 a.m., and
Harrington executed the warrant at 2:03 a.m. We hold that
Harrington clearly arrested appellant within the two-hour time
limit. Both the initial arrest at 1:02 a.m. to 1:10 a.m. and the
later execution of the warrant at 2:03 a.m. were "within two
hours of the alleged offense," which occurred when appellant was
last seen driving his vehicle at 12:47 a.m.
Accordingly, the decision of the trial court is affirmed.
Affirmed.
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