Aloudah v. Commonwealth

• Decision Date: 13 February 2018
• Docket Number: Record No. 0328-17-4
• Court: Virginia Court of Appeals
• Parties: AHMED RIYADH ALOUDAH v. COMMONWEALTH OF VIRGINIA

AHMED RIYADH ALOUDAH v. COMMONWEALTH OF VIRGINIA

Record No. 0328-17-4

COURT OF APPEALS OF VIRGINIA

FEBRUARY 13, 2018

UNPUBLISHED

Present: Chief Judge Huff, Judges Alston and Russell

Argued at Alexandria, Virginia

MEMORANDUM OPINION^* BY CHIEF JUDGE GLEN A. HUFF

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA

Nolan B. Dawkins, Judge

Claire C. Schulmeister, Assistant Public Defender, for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Ahmed Riyadh Aloudah ("appellant") appeals his conviction of misdemeanor driving under the influence ("DUI"), in violation of Code § 18.2-266. Following a bench trial in the Circuit Court of the City of Alexandria ("trial court"), the trial court sentenced appellant to 179 days in jail, with all but the mandatory minimum five days suspended, and a mandatory minimum fine of $250. On appeal, appellant contends that the trial court erred in four ways: (1) admitting preliminary breath test results supported by an insufficient foundation, (2) denying his motion to suppress blood test results obtained through a warrantless search, (3) finding the evidence sufficient to prove that he was driving while intoxicated, and (4) denying his request for a deferred disposition on the grounds that it lacked the authority to do so. For the following reasons, this Court affirms appellant's conviction.

I. BACKGROUND

On appeal, "we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial." Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed, the evidence is as follows.

Alexandria police officer Reid Hudson responded to a call for service at Sheffield Court during the early morning hours of April 14, 2016. Upon arrival, he observed appellant in the driver's seat of a vehicle parked in the Sheffield Court lot with its lights on. Appellant began driving away as Hudson received further information indicating that the service call's subject was leaving Sheffield Court in the vehicle he had just observed. Hudson then began following appellant without lights or sirens. Hudson observed appellant cross three lanes of traffic without using a turn signal, then cross the left yellow line such that the vehicle's tire was entirely across the line, and nearly hit a construction barrel as he drifted back to the right. At this point, Hudson activated his emergency lights and sirens to stop appellant. Rather than immediately pulling over, however, appellant merely slowed down, moved to the right lane, and turned off on another road before stopping.

Hudson approached appellant and asked where he was coming from. During their conversation, Hudson detected a "moderate" smell of alcohol on appellant's breath and observed a bleeding, open wound on his knee. Appellant indicated he would like medical attention for the wound, so Hudson summoned an ambulance. While waiting for it to arrive, Hudson asked appellant if he had consumed any alcohol. Appellant indicated that he had one beer "several hours ago" at "about 4:00 o'clock in the afternoon."

Although the conversation thus far had occurred in English, appellant indicated that he was more comfortable communicating in Arabic. Hudson then summoned Officer Sharif, a native Arabic speaker, to act as translator. It was about 2:00 a.m. when Sharif arrived on scene. Medical personnel also arrived and, determining that appellant's injury would require further medical attention, began preparing appellant for transport to NOVA Alexandria Hospital by ambulance.

Once appellant was inside the ambulance, but before it departed for the hospital, Hudson and Sharif conducted a preliminary breath test of appellant. Before administering the test, Sharif provided appellant information about the test in Arabic translated from a police department-issued card, advising appellant that he was suspected of driving under the influence of alcohol, that he had the right to refuse the test, and that neither his refusal nor the result could be admitted as evidence in a DUI prosecution. After listening to the information, appellant agreed to take the preliminary breath test. Both Hudson and Sharif were trained in performing preliminary breath tests, and Hudson indicated that he followed that training when administering the test. The test indicated that appellant's blood alcohol content was 0.15%.¹ Based on this result, as well as his previous observations of appellant, Hudson advised appellant that he was under arrest for DUI. At this point, twenty minutes had elapsed from the time he had observed appellant driving.

After appellant arrived and received treatment at the hospital, Sharif provided him information in Arabic regarding Virginia's implied consent statute, including that "[c]onviction for unreasonably refusing to submit to any chemical test constitutes grounds for suspension ofthe privilege to operate a motor vehicle in this Commonwealth for a period of one year," by translating from a police department-issued card. Hudson then asked appellant in English whether he consented to a blood draw, to which appellant replied "yes, [I] only had one beer." Hudson explained that a blood draw was necessary to test appellant's blood alcohol content because the only breath-testing instrument appropriate for use in implied consent testing that he was aware of was located at the jail, which was located 3.8 miles away from the hospital and thus "wasn't available." He clarified that he did not offer appellant the opportunity to have a breath test using the machine at the jail because "[w]e were going to the hospital in an ambulance, we're not going to stop at jail."

After being convicted of DUI in general district court, appellant noted his de novo appeal to the trial court. Before trial, he moved to suppress the results of the warrantless blood test, which the trial court denied. The evidence from the suppression hearing, with the exception of the preliminary breath test result, was incorporated into the trial. At trial, the Commonwealth offered into evidence the certificate of analysis for appellant's blood test as well as testimony by a forensic toxicologist who analyzed appellant's blood. The blood test indicated that appellant's blood alcohol content was 0.164%.

At the close of the Commonwealth's evidence, appellant moved to strike the evidence, which the trial court denied. The defense did not present evidence, and after hearing argument, the trial court found appellant guilty of DUI with a blood alcohol content between 0.15 and 0.20%.

Counsel for appellant then asked the trial court to "consider doing a withheld finding" because appellant, a Saudi Arabian citizen, was in the country on a student visa and would graduate in 2018. The Commonwealth argued that the trial court lacked the authority to do so and further noted that the case "involve[d] a mandatory minimum and the [c]ourt has alreadymade a finding of guilt." Counsel for appellant maintained that "until an order has been signed I don't believe that any finding has officially been made." After a brief recess, the trial court stated:

I've considered a [suspended imposition of sentence] in this case and I can find no authority to do it. I certainly understand the personal issue that faces this young man . . . [but] the BAC was twice the legal limit and I don't think that the Commonwealth has made any provision for the Court to provide [a suspended imposition of sentence].

The trial court heard additional argument on sentencing, then ruled:

[I]n this case I don't think I have the authority to [defer disposition]. . . . And again, I think that based on—especially if this were a close case with regard to the BAC that . . . probably would have had some bearing perhaps on my thoughts. But I do have a case with a .16, twice the legal limit.

The trial court then imposed sentence, and this appeal followed.

II. ANALYSIS

A. Admissibility of Preliminary Breath Test

Appellant first argues that the preliminary breath test result was inadmissible at the suppression hearing because the Commonwealth provided an insufficient foundation for its accuracy. Because an adequate foundation supported the test result, this Court affirms the trial court's admissibility ruling.

1. Standard of Review

"Appellate courts review evidentiary rulings under an abuse of discretion standard." Boone v. Commonwealth, 63 Va. App. 383, 388, 758 S.E.2d 72, 75 (2014). Under this deferential standard, an appellate court will not overturn the trial court's decision merely because it disagrees with the trial court; instead, "only in those cases where 'reasonable jurists could not differ' has an abuse of discretion occurred." Campos v. Commonwealth, 67 Va. App. 690, 702, 800 S.E.2d 174, 180 (2017) (quoting Thomas v. Commonwealth, 44 Va. App. 741, 753, 607S.E.2d 738, 743, adopted upon reh'g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005)). To the extent this inquiry requires statutory interpretation, this Court reviews such questions of law de novo. Woodard v. Commonwealth, 287 Va. 276, 280, 754 S.E.2d 309, 311 (2014).

2. Merits

Code § 18.2-267, which governs the administration and admissibility of preliminary breath tests, provides in relevant part:

Any person who is suspected of [driving while intoxicated] shall be entitled, if such equipment is available, to have his breath analyzed to determine the probable alcoholic content of his blood. . . . His breath may be analyzed by any police officer of the Commonwealth, or of any county, city or town, or by any member of a sheriff's department in the normal discharge of his duties.

Code § 18.2-267(A) (emphasis added). If the test indicates the presence of alcohol in the person's blood, then a police officer "may charge the person" with a DUI offense. Code § 18.2-267(D)....