Calfee v. Com.
| Decision Date | 14 October 1974 |
| Citation | 215 Va. 253,208 S.E.2d 740 |
| Parties | Dennis Earl CALFEE v. COMMONWEALTH of Virginia. |
| Court | Virginia Supreme Court |
James W. Haskins, Martinsville (John L. Gregory, III, Young, Kiser & Haskins, Martinsville, on brief), for plaintiff in error.
A. R. Woodroof, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.
Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.
Dennis Earl Calfee, defendant, was charged in a warrant with driving an automobile while under the influence of intoxicants. The warrant also alleged that the defendant had been previously convicted of a similar offense. He was tried to a jury, found guilty, and sentenced on the jury's verdict to confinement in jail for one month and fined $200. He is here on a writ of error to the judgment.
The evidence shows that at approximately 1:40 a.m., on April 1, 1973, a deputy sheriff of Henry County noticed an automobile driven by the defendant weaving from one side of the road to the other, and he directed the defendant to pull over and stop. The deputy sheriff testified that the defendant had a strong odor of alcohol on his breath, his eyes were red, and he was unsteady on his feet. He immediately arrested the defendant and took him to the sheriff's office where he consented to take a breathalyzer test. The test was administered by State Trooper F. M. Reynolds.
A certificate of defendant's breath alcohol analysis on a State Health Department form, duly attested by Reynolds, was introduced into evidence. In accordance with the requirements of Code § 18.1--55.1(rl), the certificate set forth, Inter alia, that Reynolds was licensed by the State Health Department to conduct the test; that the test was conducted on Smith & Wesson Breathalyzer equipment in accordance with the manufacturer's specifications; that the equipment had been tested within the past six months; and that the test showed defendant's blood alcohol content to be '0.12% By weight by volume.'
Trooper Reynolds testified that he had had 45 hours of training for conducting the test on Smith & Wesson Breathalyzer equipment, and he was told during his training that the equipment had been approved by the State Health Commissioner. He said that the equipment he used to test the alcoholic content of defendant's blood was received by the Sheriff's Department of Henry County from the State Health Department. He also said that the Smith & Wesson Breathalyzer equipment which he used was the same make and model used by him during his training period and that he had been licensed by the Commissioner to conduct the test.
Defendant stipulated that he had been convicted of driving under the influence of intoxicants in March 1971 in the City of Martinsville, and evidence of this prior conviction was admitted into evidence over his objection.
Defendant first says it was error to tell the jury that he had been previously convicted of a similar offense before they determined his guilt or innocence of the alleged offense of April 1, 1973, for which he was then being tried.
Code § 18.1--58, as amended (1973 Cum.Supp.), provides for a heavier penalty for conviction of a second or subsequent offense within a period of ten years after a conviction of a similar offense of operating a motor vehicle while under the influence of intoxicants. The purposes of an allegation in a warrant or indictment that an accused has been previously convicted of a similar offense are to put him on notice that proof of his prior conviction will be introduced in evidence, and to permit the imposition of a heavier punishment if the...
To continue reading
Request your trial
-
Washington v. Com.
...statute, to a heavier penalty . . . the previous conviction must be alleged in the indictment. . . ."); Calfee v. Commonwealth, 215 Va. 253, 255, 208 S.E.2d 740, 741 (1974); Commonwealth v. Ellett, 174 Va. 403, 409, 4 S.E.2d 762, 764 (1939). Because the prior convictions necessary to sustai......
-
Washington v. Com.
...prior, valid convictions." Harris v. Commonwealth, 26 Va.App. 794, 803, 497 S.E.2d 165, 169 (1998); see also Calfee v. Commonwealth, 215 Va. 253, 255, 208 S.E.2d 740, 741-42 (1974) (quoting Commonwealth v. Ellett, 174 Va. 403, 409, 413, 4 S.E.2d 762, 764, 766 (1939)). Moreover, the statute ......
-
Farmer v. Com.
...3 Va.App. 152, 161, 348 S.E.2d 434, 441 (1986), aff'd, 236 Va. 1, 372 S.E.2d 134 (1988). Indeed, in Calfee v. Commonwealth, 215 Va. 253, 255, 208 S.E.2d 740, 741 (1974) (quoting Commonwealth v. Ellett, 174 Va. 403, 409, 413, 4 S.E.2d 762, 764, 766 (1939)), our Supreme Court held that "[f]or......
-
Washington v. Com.
...phase of his trial under Code § 18.2-67.5:3 did not violate the defendant's due process rights); Calfee v. Commonwealth, 215 Va. 253, 254-55, 208 S.E.2d 740, 741-42 (1974) (trial court did not err in admitting prior conviction in guilt phase under a predecessor of Code § 18.2-270); Berry v.......