Hogle v. Commonwealth

• Decision Date: 15 November 2022
• Docket Number: Record No. 0027-22-3
• Citation: 75 Va.App. 743,879 S.E.2d 622
• Parties: Michael Charles HOGLE v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

75 Va.App. 743

879 S.E.2d 622

Michael Charles HOGLE

v.COMMONWEALTH of Virginia

Record No. 0027-22-3

Court of Appeals of Virginia, Lexington.

November 15, 2022

Jennifer T. Stanton, Senior Assistant Public Defender (Indigent Defense Commission, on briefs), for appellant.

William K. Hamilton, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Fulton, Ortiz and Senior Judge Petty

OPINION BY JUDGE WILLIAM G. PETTY

Following a bench trial, the trial court convicted Michael Charles Hogle for driving while under the influence (DUI) in violation of Code § 18.2-266 and sentenced him to twelve months in jail, all suspended. Hogle argues that the trial court erred in denying his motion to suppress the evidence because the police obtained it in violation of Code § 46.2-646(E). He contends that subsection (E) of Code § 46.2-646, which took effect in March 2021, applied retroactively and rendered inadmissible the evidence the police seized in 2019. He further contends that the evidence was insufficient to support his conviction. We affirm the judgment because we conclude that the trial court did not err in denying the motion to suppress or finding the evidence sufficient to sustain Hogle's conviction.

BACKGROUND

"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial." Gerald v. Commonwealth , 295 Va. 469, 472, 813 S.E.2d 722 (2018) (quoting Scott v. Commonwealth , 292 Va. 380, 381, 789 S.E.2d 608 (2016) ). In doing so, we discard any of Hogle's conflicting evidence, and regard as true all credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from that evidence. Id. at 473, 813 S.E.2d 722.

On September 10, 2019 at 3:48 p.m., Virginia State Police Trooper Savannah Stagner saw Hogle driving a car in Augusta County and noticed that the vehicle registration was expired. After running Hogle's license plate to confirm the expiration, she stopped Hogle for that reason at 3:51 p.m.

Hogle, who was alone in the car, did not have his driver's license, but he provided the trooper with his social security number. Trooper Stagner noticed numerous orange prescription drug bottles in the car, and smelled alcohol on Hogle's breath. When the trooper asked how much he had had to drink that day, Hogle said that he took "several" shots of tequila at "around 12:30" p.m. He said that he had not been feeling well for the last few days, had gone to work that day but left early, and took the shots of tequila after he got home to help him sleep. Hogle claimed he had consumed no more alcohol since then.

Trooper Stagner asked Hogle if he had any medical conditions. Hogle replied that he took Adderall for depression and that he had been sick. Trooper Stagner administered a series of field sobriety tests.¹ When the trooper conducted the horizontal gaze nystagmus test

, she observed that Hogle's eyes were bloodshot, that "he had equal pupil size and equal tracking and that he did demonstrate a lack of smooth pursuit and distinct and sustained nystagmus at maximum deviation."² After Trooper Stagner demonstrated the "walk-and-turn" test and confirmed that Hogle understood the instructions, he swayed on the first few steps of the test, stepped offline, missed heel to toe placement on steps three and four, and executed the turn improperly by moving both feet. Finally, Trooper Stagner had Hogle perform the "one-leg stand" test. Trooper Stagner testified that Hogle "really didn't follow any of the instructions" for the test. He failed to keep his raised foot below six inches, held the raised foot pointed rather than parallel to the ground, and did not count as Trooper Stagner had instructed him. After Hogle completed a preliminary breath test, the trooper arrested him at 4:04 p.m.

In a search of Hogle's car, the police found empty fifty-milliliter bottles of Fireball whisky. The empty liquor bottles and medication bottles were concentrated in the passenger side floorboard and the center console of the vehicle. A glass smoking device and a container with marijuana residue also were in the car. Hogle consented to a blood test, and a sample of his blood was drawn at 4:53 p.m.

Dr. James Kuhlman, an expert in the field of forensic toxicology, tested Hogle's blood sample. Hogle's blood contained a blood alcohol concentration (BAC) of 0.069%, an amphetamine

concentration of 0.19 milligram per liter, a THC concentration of 0.0036 milligram per liter, and a THC carboxylic acid concentration of 0.025 milligram per liter. Kuhlman opined that alcohol is a nervous system depressant that can slow a person's reaction times and affect coordination. Amphetamine, a drug that is often prescribed for people with attention deficit disorder, is a stimulant that may help such patients focus. Kuhlman stated that "someone who has been taking the drug for an extended period of time under a doctor's prescription most likely will develop tolerance" to associated side effects. Kuhlman explained that THC is the active compound found in marijuana and can cause euphoria and diminished ability to concentrate or to focus. THC "does not last very long in the body," and "the THC level goes below the limits of detection within four to six hours" of smoking marijuana. THC carboxylic acid is produced when THC is metabolized in the body.

Kuhlman stated that most people eliminate a little less than one shot of alcohol from the body per hour. Kuhlman explained that most of the absorption of alcohol occurs within the first hour it is ingested. Thus, the level of alcohol "may or may not plateau" until two hours after ingestion. Kuhlman further stated, "Once you reach the two-hour time period after the ingestion of alcohol your body is eliminating the alcohol and it eliminates at a line[a]r rate that's very predictable[.]" Consequently, two hours after ingestion, the body enters an "elimination phase" and eliminates alcohol at a rate of 0.1 to 0.25% per hour. Applying retrograde extrapolation, Kuhlman opined that a BAC of 0.069 at 4:53 p.m., when Hogle's blood sample was collected, with the final drink consumed at 12:30 p.m., translated into a BAC range of 0.08 to 0.096% at 3:48 p.m., the time the trooper first saw Hogle driving. Kuhlman admitted that Adderall and alcohol could possibly counteract the effects of the other substance.

Testifying on his own behalf, Hogle, a previously convicted felon, said that he was not feeling well at the time of the stop. He had taken prescribed Adderall three times per day for the past fifteen years. Hogle did not eat on the day Trooper Stagner stopped him because of nausea.

Code § 46.2-646(E), which took effect on March 1, 2021, provides that "[n]o law-enforcement officer shall stop a motor vehicle due to an expired registration sticker prior to the first day of the fourth month after the original expiration date." See 2020 Va. Acts, Spec. Sess. I., chs. 45, 51. The subsection further states, "No evidence discovered or obtained as the result of a stop in violation of this subsection, including evidence discovered or obtained with the operator's consent, shall be admissible in any trial, hearing, or other proceeding." See id.

The trial court conducted a pretrial hearing on Hogle's motion to suppress the evidence claiming that the search and seizure of his vehicle violated Code § 46.2-646(E). After initially taking the matter under advisement, the trial court denied the motion to suppress, reasoning that the amendment to Code § 46.2-646(E) contained both substantive and procedural elements and could not practically be applied retroactively to Trooper Stagner's actions, which occurred before the effective date of the statutory amendment.

At the conclusion of the evidence, the trial court rejected Hogle's argument that the Commonwealth had failed to prove intoxication beyond a reasonable doubt. The trial court considered the "overall picture" in the case, concluded that Hogle should not have been "driving with those three drugs in his system," and noted that his blood test occurred when the percentage of alcohol in his blood was diminishing. Accordingly, the trial court found the evidence sufficient to prove appellant was intoxicated when he was driving and convicted him of violating Code § 18.2-266. Hogle appeals.

ANALYSIS

I.

Hogle contends that the trial court improperly applied statutory retroactivity principles and, as a result, erroneously denied his motion to suppress the evidence.

"When challenging the denial of a motion to suppress on appeal, the defendant bears the burden of establishing that reversible error occurred." Street v. Commonwealth , 75 Va. App. 298, 303-04, 876 S.E.2d 202 (2022) (quoting Mason v. Commonwealth , 291 Va. 362, 367, 786 S.E.2d 148 (2016) ). "Whether a statute should be applied retroactively is ... a question of law that an appellate court reviews de novo. " Id. at 304, 876 S.E.2d 202.

Hogle argues that the amendment to Code § 46.2-646 in 2021 adding subsection (E) was purely a change in procedure that applied retroactively. "The ‘usual rule’ regarding a new statute is ‘that legislation is ... prospective’ only." Id. at 305, 876 S.E.2d 202 (quoting Martin v. Hadix , 527 U.S. 343, 357, 119 S.Ct. 1998, 2005-6, 144 L.Ed.2d 347 (1999) ). "The retroactivity of statutes is disfavored." Id. (citing McCarthy v. Commonwealth , 73 Va. App. 630, 647, 864 S.E.2d 577 (2021) ). "A statute is retroactive only if the legislature includes an express provision or other clear language indicating that it applies retroactively." Id. "In fact, ‘[e]very reasonable doubt is resolved against a retroactive operation of a statute, and words of a statute ought not to have a retrospective operation unless they are so clear, strong[,] and imperative that no other meaning can be annexed to them ....’ " Id. (quoting Taylor v. Commonwealth , 44 Va. App. 179, 185, 604 S.E.2d 103 (2004)...