D'Amico v. Commonwealth

PRESENT: All the Justices
PAUL J. D'AMICO
OPINION BY
v. Record No. 130549 JUSTICE ELIZABETH A. McCLANAHAN
FEBRUARY 27, 2014
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Robert M.D. Turk, Judge
The circuit court found Paul J. D'Amico guilty of
unreasonably refusing to submit to a breath test in violation
of Code § 18.2-268.3. On appeal, D'Amico contends the circuit
court erroneously admitted into evidence the arresting
officer's "Declaration and Acknowledgment of Refusal" form
required by subsections B and C of the statute. D'Amico also
challenges the circuit court's denial of his motion to strike
the Commonwealth's evidence. We affirm his conviction.
I. Background
Deputy A.J. Shrader, Jr., of the Montgomery County
Sheriff's Office, arrested D'Amico for driving under the
influence of alcohol (Code § 18.2-266). At that time, Shrader
"advise[d] [D'Amico] of Virginia's implied consent law," which
Shrader read from "the standard card that [he] kept with
[him.]" Shrader then transported D'Amico to the Montgomery
County magistrate's office and left D'Amico with Officer Mike
F. Nelson of the Christiansburg Police Department to conduct
the "DUI breath test."
Before administering the breath test, Nelson read to
D'Amico the information contained in the Declaration and
Acknowledgment of Refusal form (hereinafter the "refusal form")
as specified in Code § 18.2-268.3(B). 1 D'Amico stated in
response that "he wanted his attorney and if his attorney said
to take [the breath test], he would." Nelson then asked
D'Amico three times to take the test, but D'Amico refused and
cursed at Nelson. Afterwards, Shrader returned for D'Amico,
1
Subsection B of Code § 18.2-268.3 states, in relevant
part:
When a person is arrested for a violation of [§]
18.2-266 . . . and such person refuses to permit blood
or breath or both blood and breath samples to be taken
for testing as required by § 18.2-268.2, the arresting
officer shall advise the person, from a form provided
by the Office of the Executive Secretary of the
Supreme Court, that (i) a person who operates a motor
vehicle upon a highway in the Commonwealth is deemed
thereby, as a condition of such operation, to have
consented to have samples of his blood and breath
taken for chemical tests to determine the alcohol or
drug content of his blood, (ii) a finding of
unreasonable refusal to consent may be admitted as
evidence at a criminal trial, (iii) the unreasonable
refusal to do so constitutes grounds for the
revocation of the privilege of operating a motor
vehicle upon the highways of the Commonwealth, (iv)
the criminal penalty for unreasonable refusal within
10 years of a prior conviction for driving while
intoxicated or unreasonable refusal is a Class 2
misdemeanor, and (v) the criminal penalty for
unreasonable refusal within 10 years of any two prior
convictions for driving while intoxicated or
unreasonable refusal is a Class 1 misdemeanor.
2
took him to the magistrate and obtained a summons against him
on the charge of unreasonably refusing to submit to a breath
test in violation of Code § 18.2-268.3, first offense. 2
In obtaining the summons, Shrader presented to the
magistrate a refusal form bearing his signature. The refusal
form indicated that Shrader, as the arresting officer, had read
the form to D'Amico, and that D'Amico, "after having th[e] form
read to him[,] refused to permit the taking of a breath and/or
blood sample."
At the bench trial on D'Amico's refusal charge, Shrader and
Nelson testified for the Commonwealth. Shrader acknowledged
during his testimony that he could not recall whether he had in
fact read the refusal form to D'Amico. D'Amico objected to the
Commonwealth's motion to admit into evidence the refusal form
signed by Shrader (hereinafter the "Shrader form"). D'Amico
argued, inter alia, that the Shrader form was inadmissible
because the Commonwealth's evidence established that Nelson,
the breath test operator, and not Shrader, the arresting
officer, read the refusal form to D'Amico, contrary to the
terms of Code § 18.2-268.3(B). Furthermore, D'Amico asserted,
Shrader wrongfully certified to the magistrate on the Shrader
2
Pursuant to subsection D of Code § 18.2-268.3, "[a] first
violation is a civil offense and subsequent violations are
criminal offenses. For a first offense the court shall suspend
the defendant's privilege to drive for a period of one year."
3
form that he read this form to D'Amico, contrary to the terms
of Code § 18.2-268.3(C). 3 In response, the Commonwealth argued
that the combined actions of Shrader and Nelson were in
substantial compliance with the procedures set forth in
subsections B and C of Code § 18.2-268.3, which was all that
was required under the governing standard provided in Code §
18.2-268.11. 4 The circuit court took D'Amico's objection under
advisement.
At the conclusion of the Commonwealth's case, D'Amico
presented no evidence, but moved to strike the Commonwealth's
evidence on the same grounds that he opposed the admission of
3
Subsection C of Code § 18.2-268.3 states, in relevant
part:
The arresting officer shall, under oath before
the magistrate, execute the form and certify, (i) that
the defendant has refused to permit blood or breath or
both blood and breath samples to be taken for testing;
(ii) that the officer has read the portion of the form
described in subsection B to the arrested person;
[and] (iii) that the arrested person, after having had
the portion of the form described in subsection B read
to him, has refused to permit such sample or samples
to be taken . . . . Such sworn certification shall
constitute probable cause for the magistrate to issue
a warrant or summons charging the person with
unreasonable refusal.
4
Code § 18.2-268.11 states, in relevant part, that "[t]he
steps set forth in §§ 18.2-268.2 through 18.2-268.9 relating to
taking, handling, identifying, and disposing of blood or breath
samples are procedural and not substantive," and that
"[s]ubstantial compliance shall be sufficient."
4
the Shrader form. Absent this form's admission, D'Amico
argued, the Commonwealth failed to establish a prima facie case
of unreasonable refusal. The circuit court took the case under
advisement, deferring its rulings on the admissibility of the
Shrader form and the motion to strike.
The circuit court subsequently overruled D'Amico's
objection to the Shrader form and found him guilty as charged,
based on the testimony of Shrader and Nelson that D'Amico was
arrested under Code § 18.2-266 and refused to submit to the
breath test in order to first speak with his attorney.
We granted D'Amico this appeal in which he argues in his
assignments of error that the circuit court erred by admitting
the Shrader form and denying his motion to strike.
II. Analysis
Central to D'Amico's challenges to the circuit court's
rulings is his contention that the circuit court erroneously
construed Code § 18.2-268.3 with regard to the elements of the
unreasonable refusal offense. This presents a pure question of
law subject to de novo review. Boone v. Commonwealth, 285 Va.
597, 599, 740 S.E.2d 11, 12 (2013); Lawlor v. Commonwealth, 285
Va. 187, 223, 738 S.E.2d 847, 868 (2013). Settled principles
of statutory construction dictate that "'[w]hen the language of
a statute is unambiguous, we are bound by the plain meaning of
that language.'" Osman v. Osman, 285 Va. 384, 389, 737 S.E.2d
5
876, 878-79 (2013) (quoting Conyers v. Martial Arts World of
Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007)).
That is to say, courts are not free to place a construction
upon a statute that "'amounts to holding that the legislature
did not intend what it actually has expressed.'" Paugh v.
Henrico Area Mental Health & Dev. Servs., 286 Va. 85, 89, 743
S.E.2d 277, 279 (2013) (quoting Hubbard v. Henrico Ltd. P'ship,
255 Va. 335, 339, 497 S.E.2d 335, 337 (1998)).
Under D'Amico's view of Code § 18.2-268.3, subsections B
and C of the statute - prescribing the content, reading and
execution of the refusal form - constitute part of the elements
of the offense of unreasonable refusal. Thus, D'Amico contends
that the Commonwealth was required to prove as part of its
prima facie case that Shrader, as the arresting officer, read
the refusal form to D'Amico and observed his "resulting
refusal," which the Commonwealth's evidence failed to show. We
disagree with this reading of Code § 18.2-268.3.
Under Virginia's implied consent law, any person operating
a vehicle on a Virginia highway is "deemed . . . to have
consented" to submit to a chemical test that measures his blood
alcohol and/or drug content if he is arrested for violation of
Code § 18.2-266, as occurred in this case. Code § 18.2-268.2.
Code § 18.2-268.3(A) then sets forth the unreasonable refusal
offense as follows:
6
It shall be unlawful for a person who is arrested
for a violation of § 18.2-266 . . . to unreasonably
refuse to have samples of his blood or breath or both
blood and breath taken for chemical tests to determine
the alcohol or drug content of his blood . . . and any
person who so unreasonably refuses is guilty of a
violation of this section.
The elements of the offense are plainly stated in subsection A:
unreasonably refusing to submit to a blood and/or breath test
after being arrested for driving under the influence of alcohol
or drugs. Contrary to D'Amico's urged construction of the
statute, subsection A does not incorporate the procedural
requirements set forth in subsections B and C. 5 Instead,
compliance with the subsection B and C procedures is limited to
establishing probable cause for the issuance of a warrant or
summons charging a driver with unreasonably refusing to submit
to the breath or blood test. Thus, while the requirements in
subsections B and C indeed provide significant procedural
safeguards to the accused, they are not elements of the
unreasonable refusal offense.
Accordingly, the Shrader form was not required in order for
the Commonwealth to establish a prima facie case of
unreasonable refusal against D'Amico. The relevant, undisputed
evidence was, instead, that D'Amico had been arrested for
5
See supra notes 1 and 3.
7
driving under the influence of alcohol in violation of Code §
18.2-266 and refused to submit to a breath test until he had
spoken with his attorney. On those undisputed facts, the
circuit court found D'Amico guilty of the offense. Those facts
were sufficient as a matter of law to support that finding. As
this Court has previously held, a person's unwillingness to
take the test without prior consultation with counsel does not
constitute a reasonable basis for the refusal. Coleman v.
Commonwealth, 212 Va. 684, 685, 187 S.E.2d 172, 174 (1972);
Deaner v. Commonwealth, 210 Va. 285, 293, 170 S.E.2d 199, 204
(1969). Thus, D'Amico was not prejudiced by the admission of
the Shrader form, as he contends, and its admission was, at
most, harmless error. 6
For the same reasons, we reject D'Amico's contention that
the circuit court erred by denying his motion to strike the
Commonwealth's evidence on the theory that, absent the
admission of the Shrader form, the Commonwealth failed to prove
the elements of the unreasonable refusal offense. As stated
above, the undisputed evidence in this case was sufficient to
establish D'Amico's guilt as a matter of law.
6
Given our holding, we need not address D'Amico's argument
concerning the applicability of the substantial compliance
provisions of Code § 18.2-268.11 to Code § 18.2-268.3 in the
context of the Shrader form's admissibility.
8
III. Conclusion
We hold the circuit court committed no reversible error in
admitting the Shrader form and denying D'Amico's motion to
strike the Commonwealth's evidence. We will therefore affirm
the judgment of the circuit court.
Affirmed.
9