Jason Robert Murray v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Fitzpatrick and Annunziata
Argued at Alexandria, Virginia
JASON ROBERT MURRAY
MEMORANDUM OPINION * BY
v. Record No. 2142-96-4 JUDGE JOHANNA L. FITZPATRICK
NOVEMBER 4, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FREDERICK COUNTY
James L. Berry, Judge
(Marilyn Ann Solomon, on briefs), for
appellant. Appellant submitting on brief.
John K. Byrum, Jr., Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
Jason Robert Murray (appellant) appeals his conviction of
operating a motor vehicle in violation of Code § 18.2-266. He
contends the trial court erred by admitting into evidence the
certificate of breath alcohol analysis because (1) he was
improperly advised of the implied consent law, and (2) the
certificate was erroneous on its face. Finding no error, we
affirm.
On the night of January 6, 1996, Deputy Richardson of the
Frederick County Sheriff's Office was traveling on Route 136 when
he saw, from a distance of fifty to sixty yards, appellant's
vehicle attempting to exit the White Oak Store and Campground
parking lot, located on the corner of Route 277 and Route 136.
The parking lot previously had an exit onto Route 136, but on
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
January 6, 1996, the exit was merely a ditch and could no longer
be used as an exit onto the roadway. However, the parking lot
was freely open to the public with no impediments to access.
Richardson testified that heavy snow obscured the ditch and
obscured the fact that it was not an exit. Appellant's car
became stuck in the ditch and never left the parking lot. When
Richardson reached appellant, he was outside the car and smelled
of alcohol. Appellant admitted he had consumed about five beers
in six hours. His eyes were bloodshot, and he was talkative but
polite.
Richardson administered a series of field sobriety tests and
placed appellant under arrest and read him the implied consent
law. The results of these tests were inconclusive because of the
weather conditions. Appellant submitted to a breath test. The
language of the certificate of analysis indicated appellant's
alcohol level was ".10% grams." Richardson testified that it was
a clerical mistake to add the "%" sign and that the true reading
of appellant's alcohol level was ".10."
At trial on August 21, 1996, appellant moved to suppress the
certificate of blood alcohol analysis because (1) it was
improperly obtained following notice of the implied consent law
because appellant was stopped on private property; and (2) the
breath reading was well below the statutory presumption of
intoxication. The court denied appellant's motion and submitted
the case to the jury. Appellant was convicted of DUI in
2
violation of Code § 18.2-266.
Appellant first contends that he was not subject to the
implied consent law contained in Code § 18.2-268.2 because he was
not "upon a highway, as defined in § 46.2-100."
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). So viewed, the
evidence proved that appellant drove into a ditch alongside a
parking lot. The lot "was freely open to the public with no
impediments to access to the parking lot." The parking lot
connects a store and campground with Route 277.
Code § 46.2-100 defines a "highway" as
the entire width between the boundary lines
of every way or place open to the use of the
public for purposes of vehicular travel in
the Commonwealth, including the streets and
alleys, and, for law-enforcement purposes,
the entire width between the boundary lines
of all private roads or private streets which
have been specifically designated "highways"
by an ordinance adopted by the governing body
of the county, city, or town in which such
private roads or streets are located.
"[T]he test for determining whether a way is a 'highway'
depends upon the degree to which the way is open to public use
for vehicular traffic." Furman v. Call, 234 Va. 437, 439, 362
S.E.2d 709, 710 (1987) (citation omitted) (concluding that,
although posted with signs stating "private property" and "no
soliciting," a condominium parking lot was a "highway" because
3
public access to the lot was unrestricted). See also Coleman v.
Commonwealth, 16 Va. App. 747, 433 S.E.2d 33 (1993) (holding that
a restricted road located inside a federal enclave was a
"highway" within the definition of Code § 46.2-100).
Here, the evidence demonstrated that the road upon which
appellant travelled when Deputy Richardson approached him was
open for use by the public. It provided unrestricted vehicular
access to a store and campground from a thoroughfare. Thus, the
road was a "highway" as defined in Code § 46.2-100, and
Virginia's implied consent statute applied to appellant when he
drove upon it. Consequently, the trial judge did not err in
admitting the certificate of analysis.
Appellant next argues that the certificate of analysis
should have been suppressed because it contained an error on its
face. In order to rely on the rebuttable presumption contained
in Code § 18.2-266, the Commonwealth must establish that a driver
"has a blood alcohol concentration of 0.08 percent or more by
weight by volume or 0.08 grams or more per 210 liters of breath
as indicated by a chemical test." (Emphasis added.). While the
certificate of blood alcohol analysis indicated an alcohol
content of ".10% grams per 210 liters of breath," Richardson
testified that he mistakenly included the percent sign on the
certificate, that it was a clerical mistake, and that appellant's
true "reading from the machine was .10" grams per 210 liters of
breath.
4
Viewed in the light most favorable to the Commonwealth,
Martin, 4 Va. App. at 443, 358 S.E.2d at 418 (1987), the evidence
established that Richardson properly performed the breath test,
and the actual result comports with the statutory requirements.
Appellant cites no case law or other authority for his
assertion that because Richardson "admitted that he made a
mistake when he recorded the breath test results . . . the
Certificate was erroneous on its face and should not have been
submitted to the jury." Appellant does not contest Richardson's
qualifications or assert that the test was not properly
performed. As a qualified breath test operator, Richardson
sufficiently explained the reason for the initial error and
testified as to the true test results. Accordingly, the trial
judge did not err in admitting the certificate upon which the
jury was entitled to rely.
Affirmed.
5