John Mason St. Clair v. City of Lynchburg

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Elder
Argued at Salem, Virginia
JOHN MASON ST. CLAIR
MEMORANDUM OPINION * BY v.
Record No. 1649-97-3 JUDGE LARRY G. ELDER
NOVEMBER 24, 1998
CITY OF LYNCHBURG
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Leslie E. Allen, III (Harris, Allen & Yoder,
P.C., on brief), for appellant.
Thomas M. McKenna, Assistant Commonwealth's
Attorney, for appellee.
John Mason St. Clair (appellant) appeals from his bench
trial conviction for driving under the influence of alcohol,
second offense, in violation of Lynchburg Ordinance 25-162. 1
On appeal, he contends first that the trial court erred in
admitting the results of his breath test because the City failed
to prove substantial compliance with statutory requirements for
administering the breath test; the test was conducted less than
twenty minutes after appellant ingested two prescription
nitroglycerin tablets, and the City failed to prove that the
nitroglycerin did not contaminate the breath sample and skew the
breathalyzer result. Second, he contends that the City deprived
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
This ordinance tracks the language of Virginia Code
§ 18.2-266.
him of a reliable test which may have proven his innocence and
that, in the absence of such a test, the trial court erred in
failing to dismiss the prosecution. For the reasons that follow,
we reject appellant's contentions and affirm his conviction.
"'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.'" James v.
Commonwealth, 18 Va. App. 746, 753, 446 S.E.2d 900, 904 (1994)
(quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d
838, 842 (1988) (citation omitted)). Ordinarily,
[t]he measure of the burden of proof with
respect to factual questions underlying the
admissibility of evidence is proof by a
preponderance of the evidence. . . . In
determining whether the Commonwealth has met
its burden, the trial court, acting as a fact
finder, must evaluate the credibility of the
witnesses, resolve the conflicts in their
testimony and weigh the evidence as a whole.
Its factual finding "is to be given the same
weight by the appellate court as is accorded
the finding of fact by a jury."
Albert v. Commonwealth, 2 Va. App. 734, 738, 347 S.E.2d 534, 536
(1986) (quoting Witt v. Commonwealth, 215 Va. 670, 674, 212
S.E.2d 293, 296-97 (1975) (citations and footnote omitted)).
Code § 18.2-268.2 provides, in relevant part, that "[a]ny
person . . . arrested for a violation of § 18.2-266(i) or (ii)
. . . or of a similar ordinance shall submit to a breath test.
If the breath test is unavailable or the person is physically
unable to submit to the breath test, a blood test shall be
given." Under Code § 18.2-268.9, "[t]o be capable of being
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considered valid as evidence in a prosecution under § 18.2-266
. . . or a similar ordinance, chemical analysis of a person's
breath shall be performed . . . in accordance with methods
approved by the Department of Criminal Justice Services, Division
of Forensic Science." The code also provides, however, 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. Substantial compliance shall be
sufficient. Failure to comply with any steps
or portions thereof . . . shall not of itself
be grounds for finding the defendant not
guilty, but shall go to the weight of the
evidence and shall be considered with all the
evidence in the case; however, the defendant
shall have the right to introduce evidence on
his own behalf to show noncompliance with the
aforesaid procedures or any part thereof, and
that as a result his rights were prejudiced.
Code § 18.2-268.11. The Commonwealth bears the burden of proving
substantial compliance with the statutes' requirements. See
Snider v. Commonwealth, 26 Va. App. 729, 732, 496 S.E.2d 665, 666
(1998).
The trial court concluded under these standards that Officer
King's administration of the breathalyzer test less than twenty
minutes after appellant ingested two sublingual nitroglycerin
tablets constituted "a violation of the procedures outlined by
the statute." However, it also concluded that administration of
the test substantially complied with the statute and
corresponding regulations. We cannot hold that it erred in so
ruling.
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In evaluating whether the test as administered substantially
complied with the governing regulations, the trial court was
entitled to consider testimony before it regarding the impact of
the procedures followed on the reliability of the outcome. See
Hudson v. Commonwealth, 21 Va. App. 184, 186, 462 S.E.2d 913, 914
(1995) (reversing conviction because Commonwealth failed to
present any evidence permitting finding of substantial
compliance). Here, the Commonwealth offered testimony from Peter
Marone, the Assistant Director of the Division of Forensic
Science and the official responsible for overseeing breathalyzer
test training programs and promulgating the regulations governing
operation of the machine. Marone testified that King's failure
to comply strictly with the twenty-minute waiting period would
result in a procedurally invalid test but "[t]echnically . . .
probably [would] not" invalidate the test. (Emphasis added).
Dr. Valentour, the Chief Forensic Toxicologist for that same
agency, the Division of Forensic Science, testified to his
familiarity with the means of operation of the Breathalyzer 900A
and the chemical properties of nitroglycerin. Based on that
knowledge, he testified definitively that "[t]he only way that
there could be some reaction in the potassium dichromate of The
Breathalyzer is if the Nitroglycerin is actually physically
dropped into the solution" because "[i]t's not volatile in
sufficient quantities to pass by way of the breath into the
ampule [of the Breathalyzer] and cause a reaction." Based on
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this testimony, the trial court was entitled to conclude that the
procedures Officer King employed in testing appellant's breath
alcohol level substantially complied with the controlling
statutes and regulations, thereby making the test results
admissible into evidence under Code § 18.2-268.11 and permitting
the trial court, as the trier of fact, to determine what weight
to give the results after considering it in the context of all
the evidence in the case.
Our holding in Hudson v. Commonwealth, 21 Va. App. 184, 462
S.E.2d 913 (1995), cited by appellant, does not require a
different result. In Hudson, the record indicated that the
defendant's arm was cleaned with "benadine" before his blood was
drawn, whereas the statute required cleaning with any of three
other named solutions, which did not include benadine. Because
the Commonwealth presented "[n]o evidence . . . as to the
chemical properties of benadine," we held that "nothing in the
record support[ed] the argument that using 'benadine'
substantially complie[d] with the statute." Id. at 186, 462
S.E.2d at 914 (emphasis added). In appellant's case, by
contrast, the record contains the testimony of Dr. Valentour that
appellant's ingestion of nitroglycerin during the twenty-minute
waiting period before administration of the breathalyzer had no
impact on the reliability of the test. Although the record also
contains the contradictory testimony of Mr. McGerry, Dr.
Valentour's testimony permitted the trial court to find
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substantial compliance sufficient to permit admission of the
breathalyzer results into evidence under Code § 18.2-268.11.
That code section permitted appellant to introduce evidence that
the noncompliance prejudiced his rights, which he did through the
testimony of Mr. McGerry, and required the trial court to
consider all the evidence in the case in determining whether the
noncompliance established reasonable doubt regarding appellant's
guilt. 2
Appellant contends that the hypothetical the Commonwealth
posed to Dr. Valentour was insufficient to permit a finding that
appellant's ingestion of two nitroglycerin tablets during the
waiting period did not skew the breathalyzer results. The
Commonwealth asked Dr. Valentour whether he had "an opinion as to
whether a sublingually taken nitroglycerin pill would be volatile
enough to have an effect on a reading from a Smith & Wesson 900-A
breathalyzer machine." (Emphases added). Dr. Valentour
responded that he did have an opinion--"[t]hat there would be no
effect." In light of the evidence that appellant actually took
two nitroglycerin tablets during the twenty-minute waiting
period, we agree that Dr. Valentour's response to this
hypothetical, taken alone, would have been insufficient to prove
substantial compliance. However, immediately preceding this
hypothetical, Dr. Valentour testified unequivocally that the only
2
Appellant challenges only the admissibility of the breath
test and not the sufficiency of the evidence to support his
conviction.
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way sublingual nitroglycerin "could [cause a] reaction in the
potassium dichromate of The Breathalyzer is if the Nitroglycerin
is actually physically dropped into the solution." In giving
this testimony, he did not qualify his response by indicating
that a variation in the quantity or dosage of sublingual
nitroglycerin would be a factor.
Finally, we reject appellant's contention that Dr.
Valentour's opinion was based on speculation because he had not
conducted any experiments to support his conclusion that no
significant quantities of nitroglycerin could be carried into the
breathalyzer in appellant's breath. Dr. Valentour, a Ph.D. in
chemistry and an expert in toxicology, testified that his
conclusions were based on his knowledge of the physical
properties of nitroglycerin. We cannot conclude that the absence
of actual testing invalidated his opinion. Interestingly,
appellant's expert also provided no testimony that he had
conducted any experiments on the subject and said that his
opinion, too, was based on "the physical properties of the
Nitroglycerin being soluble in the alcohol."
Appellant also contends that, pursuant to this Court's
holding in Breeden v. Commonwealth, 15 Va. App. 148, 150, 421
S.E.2d 674, 675 (1992), he had "a right to receive the benefits
of the test," which, if properly administered, could have proven
his innocence. The invalidity of the test due to violation of
the twenty-minute waiting period and the Commonwealth's failure
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to give him a blood test when the nitroglycerin rendered him
"physically unable to submit to the breath test" deprived him of
this right, he argues. Under the facts of this case, we hold
that Breeden is inapplicable and that appellant was not
"physically unable" to submit to the breath test within the
meaning of Code § 18.2-268.2.
Breeden was decided under a predecessor statute, which
permitted "[a]nyone arrested for driving under the influence of
alcohol [to] 'elect to have either the blood or breath sample
taken, but not both.'" Breeden, 15 Va. App. at 150, 421 S.E.2d
at 675 (quoting former Code § 18.2-268(C)). Under current law,
by contrast, an arrestee must "submit to a breath test" unless
"the breath test is unavailable or the person is physically
unable to submit to the breath test." Code § 18.2-268.2(B).
Despite this change in the statute, Officer Trent testified that
he gave appellant a choice as to which test he would take and
that appellant chose the breath test. In addition, the breath
test was available and was, in fact, administered. Furthermore,
the evidence does not show that appellant was physically unable
to submit to the breath test. Officer Trent testified that
appellant did not have any physical problem blowing into the
machine, and the trial court found "no evidence that [appellant]
was ever physically unable" to take the test. Because any
physical inability appellant had in submitting to the breath test
was constructive only, we hold that his need to use nitroglycerin
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for his heart condition during the twenty-minute waiting period
did not meet the "physical inability" requirement necessitating
use of a blood test.
For these reasons, we conclude that the trial court did not
abuse its discretion in admitting the results of the breathalyzer
test into evidence and did not err in refusing to dismiss the
prosecution. Therefore, we affirm appellant's conviction.
Affirmed.
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