Farmer v. Com.

• Decision Date: 10 April 1990
• Docket Number: No. 0532-88-3,0532-88-3
• Citation: 390 S.E.2d 775,10 Va.App. 175
• Parties: , 58 USLW 2642 Michael Larry FARMER v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 775

390 S.E.2d 775

10 Va.App. 175, 58 USLW 2642

Michael Larry FARMER v. COMMONWEALTH of Virginia.

Record No. 0532-88-3.

Court of Appeals of Virginia.

April 10, 1990.

Rehearing En Banc Granted June 6, 1990.

Michael J. Barbour (Gilmer, Sadler, Ingram, Sutherland & Hutton, Pulaski, on brief), for appellant.

Eugene Murphy, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BARROW and MOON, JJ.

KOONTZ, Chief Judge.

In a January 8, 1988 bifurcated trial by jury, Michael Larry Farmer, appellant, was convicted of driving under the influence (DUI), a third or subsequent offense within five years in violation of Code § 18.2-266 and of driving after being declared an habitual offender in violation of Code § 46.1-387.8. In this appeal, Farmer argues that the trial court erred by admitting evidence of his prior DUI convictions during the guilt stage of the trial and by admitting evidence of his refusal to perform field sobriety tests. ¹ We find that the trial court did not err by admitting evidence of Farmer's prior DUI convictions, but did err in admitting evidence of Farmer's refusal to submit to field sobriety tests.

I. FACTS

At approximately 2:16 a.m. on August 2, 1986, Deputy Sheriff Robert Hoback of the Pulaski County Sheriff's Department observed a purple AMC drive past him in the opposite direction. Hoback recognized the driver of the vehicle as Farmer, whom he had known approximately twenty years. Because Hoback knew that Farmer did not possess a valid driver's license, he turned to pursue Farmer. As Hoback pursued the vehicle, it sped up before turning into a gas station and coming to a stop. Officer Hoback parked his vehicle behind Farmer's and approached Farmer's vehicle. Hoback discovered Farmer in the back seat and his companion in the front passenger seat; no one was in the driver's seat. ² Hoback testified that he detected a strong odor of alcohol when he assisted Farmer out of the vehicle. According to Hoback, Farmer was unsteady on his feet, was weaving, had slurred speech and glassy eyes, used abusive language, and had a strong odor of alcohol on his breath. On cross-examination, Farmer admitted that he had consumed six to ten beers over a period of several hours that night. Over Farmer's objection, Officer Hoback testified that Farmer refused to perform the requested field sobriety tests.

The Commonwealth requested and was granted a bifurcated trial. During the guilt phase of the trial, the Commonwealth introduced evidence of Farmer's prior DUI convictions. Farmer's entire traffic record, which included the prior DUI offenses and various other traffic infractions, was introduced during the sentencing phase of the trial.

II. EVIDENCE OF PRIOR DUI CONVICTIONS

Farmer first alleges that the trial court erred by admitting evidence of his prior DUI convictions during the guilt phase of his bifurcated trial for DUI as a third or subsequent offense within five years. Farmer argues that evidence of prior DUI convictions is not part of the substantive offense of driving under the influence in violation of Code § 18.2-266 made punishable by Code § 18.2-270, and, therefore, is not admissible in the guilt stage of a bifurcated trial in accordance with Code § 46.2-943 (formerly Code § 46.1-347.2). We do not construe Code § 46.2-943 as precluding evidence of prior DUI convictions in the guilt stage of a trial for DUI as a third or subsequent offense. Further, we hold that evidence of prior DUI convictions is necessary to prove the substantive offense of driving under the influence as a third or subsequent offense, and therefore, is admissible during the guilt stage of a bifurcated trial.

Code § 46.2-943 allows for a bifurcated trial for traffic offenses and provides, in pertinent part, that "[w]hen any person is found guilty of a traffic offense, the court or jury trying the case may consider the prior traffic record of the defendant before imposing sentence as provided by law." (emphasis added). The purpose of a bifurcated trial is to allow the trier of fact to consider the prior traffic record of the accused for sentencing purposes while avoiding the risk of prejudice to the accused when determining guilt or innocence. Thus, Farmer correctly asserts that evidence of the prior traffic record of the accused is admissible only in the sentencing phase of a bifurcated trial, since allowing it in the guilt phase of a trial would undermine the purpose of Code § 46.2-943. However, we disagree with Farmer's contention that evidence of prior DUI convictions, standing alone, is not admissible during the guilt phase of a trial where the offense is charged as a third or subsequent offense pursuant to Code §§ 18.2-266 and 18.2-270. Evidence of prior DUI convictions and evidence of prior traffic records are not the same. Traffic records as contemplated by Code § 46.2-943 contain prior suspensions and revocations of a driver's license and prior convictions of moving traffic violations, including, but not limited to, DUI convictions. Thus, while evidence of a prior DUI conviction may be a part of a traffic record, such evidence does not necessarily constitute the traffic record for purposes of the application of Code § 46.2-943.

In the present case, at the guilt stage of the trial, the Commonwealth introduced evidence by "Commonwealth Exhibit # 1" of Farmer's prior DUI convictions in 1982, 1985 and 1986, respectively. Farmer's prior traffic record, which contained convictions of numerous other traffic violations, was produced by "Commonwealth Exhibit # 6"' and was not introduced until the sentencing stage of the trial. This procedure is consistent with the provisions of Code § 46.2-943. This Code section prohibits the introduction of the entire traffic record during the guilt stage of a bifurcated trial. Because we find that evidence of a prior DUI conviction is independent of the traffic record and was appropriately introduced in this case, we hold that evidence of the prior DUI convictions was admissible during the guilt phase of Farmer's trial.

Evidence of prior DUI convictions is necessary during the guilt stage of a trial for DUI as a third or subsequent offense in order for the Commonwealth to meet its burden of proof. As the Commonwealth asserts, it "is entitled to prove the elements set forth in the [warrant], and proof of the [DUI charge as a third or subsequent offense under Code § 18.2-266] required proof of the previous conviction[s] for [DUI]." Glover v. Commonwealth, 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 the heavier punishment to be imposed by the jury or the court trying the case without the jury, 'the prior offense must be charged and proven.' "

The arrest warrant charged Framer with unlawfully operating a motor vehicle while intoxicated as a third or subsequent offense within five years in violation of Code § 18.2-266. To convict Farmer of the offense charged, the Commonwealth was required to present evidence to prove that Farmer previously had been convicted on two or more occasions of driving under the influence within a five year period. The jury was properly instructed that in order to convict Farmer of the offense charged, the Commonwealth had to prove that Farmer was driving a motor vehicle, was under the influence at the time of driving the vehicle, and had two or more prior DUI convictions within the past five years. Not only would the Commonwealth necessarily fail to meet its burden of proof if evidence of prior DUI convictions was not admitted, but the trial court could not properly instruct the jury on the elements of the charge of driving under the influence as a third or subsequent offense if the Commonwealth was not permitted to introduce evidence of the prior DUI convictions during its case in chief.

In summary, we hold that evidence of prior DUI convictions does not constitute the "traffic record" as contemplated by Code § 46.2-943 where the offense charged under Code § 18.2-266 is a subsequent offense of DUI punishable under Code § 18.2-270. We further hold that proof of such charge requires proof of the prior DUI convictions. For these reasons, the trial court did not err in admitting evidence of Farmer's prior DUI convictions independent of his prior traffic record during the guilt stage of the trial.

III. REFUSAL TO SUBMIT TO FIELD SOBRIETY TESTS

Farmer also argues that his right against self-incrimination under the United States and Virginia Constitutions was violated when the trial court admitted evidence of his refusal to submit to field sobriety tests. Although this is an issue of first impression in Virginia, it has been addressed by several of our sister states and by the United States Supreme Court.

The fifth amendment to the United States Constitution, as applied to the states through the fourteenth amendment, provides that no person shall be compelled to be a witness against himself in a criminal trial. Similarly, Article I, § 8 of the Virginia Constitution provides that no person shall "be compelled in any criminal proceeding to give evidence against himself...." The fifth amendment protection against self-incrimination extends only "to testimonial or communicative evidence and does not protect one from being compelled to produce nontestimonial evidence." State v. Neville, 346 N.W.2d 425, 429 (S.D.1984) (quoting State v. Maher, 272 N.W.2d 797, 799 (S.D.1978)). See also Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966); Deering v. Brown, 839 F.2d 539, 541 (9th Cir.1988); United States v. Williams, 704 F.2d 315, 317 (6th Cir.1983); State v. Theriault, 144 Ariz. 166, 167, 696 P.2d 718, 719 (Ct.App.1984); Walton v. City of...