Davis v. Com., 1274-87-3

• Citation: 8 Va.App. 291,381 S.E.2d 11
• Decision Date: 06 June 1989
• Docket Number: No. 1274-87-3,1274-87-3
• Parties: Kenneth Palestine DAVIS v. COMMONWEALTH of Virginia. Record
• Court: Court of Appeals of Virginia

Page 11

381 S.E.2d 11

8 Va.App. 291

Kenneth Palestine DAVIS v. COMMONWEALTH of Virginia.

Record No. 1274-87-3.

Court of Appeals of Virginia.

June 6, 1989.

Joseph A. Sanzone, Lynchburg, for appellant.

Katherine B. Toone, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BENTON and COLEMAN, JJ.

KOONTZ, Chief Judge.

Kenneth Palestine Davis was convicted in a bench trial pursuant to Code § 18.2-266(i) of driving a motor vehicle while he had a blood alcohol concentration of .10 percent or more by weight by volume as indicated by a chemical test administered in accordance with the provisions of Code § 18.2-268. On appeal, Davis phrases the issues to be addressed in the following manner: (1) whether, in accordance with the language of Code § 18.2-266(i), the Commonwealth met its burden of proof in establishing that Davis' blood alcohol content was .10 percent or more while he was operating his vehicle; and (2) whether the trial court correctly ruled that Code § 18.2-266(i) precludes an accused from introducing evidence of his condition at the time of the alleged incident.

The essential facts leading to the charge against Davis are not in dispute. On November 24, 1986, at some time prior to 9:00 p.m. on Route 29 in Madison Heights, a truck driven by Davis struck the rear of a truck driven by John Hines which was stopped at a stop light. Trooper Lynn Roach, a Virginia State Police officer, arrived at the scene of the accident at 9:15 p.m. and interviewed Davis and Hines. Hines related to Trooper Roach that Davis had attributed the accident to faulty brakes on his truck. Hines further related that he did not detect an odor of alcohol about Davis and that Davis was polite and apologetic about the accident. Davis, however, related to Trooper Roach that "he had had one beer in Danville, Virginia, as he was coming up on his trip from Danville up 29 through Lynchburg going on North up 29." Davis stated that he had nothing alcoholic to drink after the accident. After administering a field sobriety test, Trooper Roach arrested Davis at 9:45 p.m. Subsequently, a blood test was administered on Davis at 10:17 that evening. The test results were reported as .10 percent by weight by volume.

At trial, Davis conceded that he was driving at the time of the accident and that the blood test was administered "in accordance with the provisions of Code § 18.2-268." ¹ He also concedes these facts on appeal. However, because the test results were reported precisely at .10 percent, the minimum proscribed by Code § 18.2-266(i), he challenges the accuracy of these results and asserts that they did not accurately reflect his blood alcohol concentration at the time he was driving his truck.

In this context, it is apparent from the record that Davis intended a three-pronged defense to the charge. First, while conceding that the blood test was properly administered, he intended to challenge the precision of the test results based on standard deviations inherent in the test procedures. Second, he intended to introduce evidence that the test results only established his blood alcohol concentration at the time the test was performed and not necessarily at the time he was driving. Third, he intended to introduce evidence that at the time the accident occurred, regardless of the subsequent blood test results, he was not under the influence of alcohol and rather the accident resulted from faulty brakes on his truck.

In anticipation of his defenses, Davis filed a pretrial motion to determine whether evidence of his "condition during the accident" would be admissible at trial. By order entered on June 30, 1987, the trial court ruled that Davis would not be permitted to introduce evidence relating to his "condition at the time of the alleged offense" because his condition at that time "is not at issue in this cause." The trial court's order further provided, however, that the "admissibility of evidence concerning the accuracy and credibility of the blood alcohol content [test] of the defendant at the time of the alleged offense" would be ruled upon at trial. At trial, the court reiterated its prior ruling and attempted to clarify it by indicating that, because Davis was charged under Code § 18.2-266(i) and not with driving under the influence of alcohol under Code § 18.2-266(ii), the evidence of his "condition" at the time of the accident was not "relevant." The court also ruled that, because Davis was admittedly the driver of the truck, under Code § 18.2-266(i) the issues at trial were limited to whether the blood test was administered in accordance with the provisions of Code § 18.2-268 and whether Davis "had 0.10 or not."

It is apparent from the record that Davis' imprecise references to his "condition during the accident" or "at the time of the alleged offense" made it difficult for the trial court to respond to his motion. Our review of the record, however, convinces us that the trial court ruled that a conviction under Code § 18.2-266(i) requires only that the Commonwealth prove beyond a reasonable doubt that Davis was driving the truck, and the blood test subsequently administered in accordance with the provisions of Code § 18.2-268 accurately reflected a blood alcohol concentration of at least .10 percent at the time the test was performed. Thus, consistent with the Commonwealth's position at trial and on appeal, the trial court adopted what has come to be known as the "per se" application of Code § 18.2-266(i) and similar statutes in our sister states. That is, the trial court limited the issues to the accuracy of the test at the time it was performed rather than the accuracy of the test as reflecting blood alcohol concentration at the time the accused was driving. In addition, pursuant to this construction of the statute, the trial court did not consider Davis' general physical condition, that is, whether he was driving while under the influence of alcohol, regardless of the blood test results.

To determine whether the trial court correctly construed the statute so as to limit the issues at trial, we must analyze the statutory scheme embodied in Code § 18.2-266 and related Code sections. While our Supreme Court has not had the occasion to address the issues presented in this appeal under Code § 18.2-266(i), a brief review of the legislative history of these Code sections reveals their legislative purpose.

At the time of the proceedings below, Code § 18.2-266 provided in pertinent part:

It shall be unlawful for any person to drive or operate any motor vehicle ... (i) while such person has a blood alcohol concentration of 0.10 percent or more by weight by volume as indicated by a chemical test administered in accordance with the provisions of § 18.2-268, or (ii) while such person is under the influence of alcohol....

(emphasis added).

Prior to 1984, Code § 18.2-266 prohibited driving "while under the influence of alcohol" (or other drugs or intoxicants). In order to facilitate that determination, when chemical tests were performed, Code § 18.2-269 provided for certain presumptions for and against the conclusion that a driver was "under the influence of alcohol" at the time of the alleged offense. Specifically, subsection (3) provided that a test result of .10 percent or higher created a presumption that a driver was under the influence of alcohol. This presumption, however, was not conclusive and could be rebutted by competent evidence. See Shinault v. Commonwealth, 228 Va. 269, 271, 321 S.E.2d 652, 654 (1984).

It is a matter of common knowledge based on human experience that outward manifestations of intoxication will vary from individual to individual. While one highly intoxicated individual may exhibit few, if any, outward manifestations of intoxication, another individual may appear to be very intoxicated after consuming a small quantity of alcohol. Thus, a determination whether a person was "under the influence of alcohol," even when aided by statutory presumptions, cannot be reduced to a readily usable mathematical or objective formula. Rather, that determination must be based upon the totality of the evidence. Under such circumstances the difficulty of establishing proof beyond a reasonable doubt that a person was under the influence of alcohol, and conversely, the difficulty of defending against an unwarranted charge, are readily apparent.

Undoubtedly, in part because of these difficulties but primarily in response to the public safety concerns over driving while intoxicated, in the 1980s state legislatures enacted legislation to strengthen the current laws against driving while under the influence of alcohol. Central to that legislation was the use of chemical tests to prescribe a maximum blood alcohol level beyond which driving would be unlawful. In theory, such tests eliminated the difficulties inherent in a subjective determination whether a person was "under the influence of alcohol." The use of a chemical test is appealing because of its objectivity and certainty. Scientific advancements in the understanding of blood alcohol concentration coupled with the language employed in specific legislation have, however, complicated legislative attempts to deal with drinking and driving and resulted in various interpretations given to similar legislation in our sister states. Based on scientific evidence, courts have come to accept as a matter of common knowledge that blood alcohol concentration, as measured by a chemical test, is a function of many factors including, but not limited to, the amount of alcohol consumed, the amount and type of food in the stomach, the body's alcohol absorption rate, an individual's size, weight, age, stomach and liver condition, and the length of time between drinking and measurement. See, e.g., State v. Murphy, 7 Ohio Misc.2d 1, 453 N.E.2d 1304 (Ohio Mun.1983); State v. Cooke, 270 N.C. 644, 155 S.E.2d 165 (1967). Courts also have come to...