Lemond v. Com., 0884-93-2

• Decision Date: 21 February 1995
• Docket Number: No. 0884-93-2,0884-93-2
• Citation: 19 Va.App. 687,454 S.E.2d 31
• Parties: Karen Sue LEMOND v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 31

454 S.E.2d 31

19 Va.App. 687

Karen Sue LEMOND v. COMMONWEALTH of Virginia.

Record No. 0884-93-2.

Court of Appeals of Virginia,

Richmond.

Feb. 21, 1995.

Kathleen B. Martin, Asst. Atty. Gen. (James S. Gilmore, III, Atty. Gen., on brief), for appellee.

Present: BAKER, BENTON, JJ., and COLE, Senior Judge.

COLE, Senior Judge.

Karen Sue Lemond was convicted of driving under the influence of alcohol, second offense. See Code §§ 18.2-266 and 18.2-270. On appeal, she contends: (1) that the trial court erred in failing to suppress her breath test results from the Intoximeter 3000 because it did not perform a "chemical analysis" as required by Code § 18.2-268.9; (2) that the trial court erred in granting a jury instruction stating that the breath test established a rebuttable presumption that she had a blood alcohol content of 0.10 percent or more at the time of the offense; and (3) that the evidence was insufficient to prove that she was driving a motor vehicle while under the influence of alcohol or while having a blood alcohol content of 0.10 percent or more. We disagree and affirm.

The evidence at trial proved that on November 21, 1992, at 10:17 p.m., State Trooper Steven Lambert saw the appellant make an illegal U-turn on Route 10 in Chesterfield County. After he stopped her, Lambert detected "a strong odor of an alcoholic beverage coming from her car and about her person." Lemond told Lambert she made the U-turn because "she missed her turn." She also told him she had earlier consumed three mixed drinks.

Lambert asked the appellant to perform three field sobriety tests. She performed poorly on the one-legged stand, the walk-and-turn test and the horizontal gaze nystagmus test. Lambert arrested her at 10:33 p.m. for driving under the influence. She elected to take the breath test, which was administered at 11:26 p.m. using the Intoximeter 3000. Her blood alcohol content ("BAC") was 0.11 percent.

At the conclusion of Trooper Lambert's testimony, the appellant moved to strike the evidence, asserting that the trooper's testimony did not demonstrate that appellant was under the influence of alcohol or that her BAC was at or above 0.10 percent at the time she was driving the car. The motion was denied.

The appellant then testified that she consumed almost three eight-ounce drinks of bourbon and water between about 7:50 p.m. and 10:00 p.m. She stated that she does not see "that well at night" and was not familiar with the area. She further stated that she was embarrassed, nervous, and frustrated when she was stopped and that she did not fully understand the sobriety tests. She explained that she has "sinus and allergies which will back up in [her] inner ear so that would throw [her] balance off." The appellant also stated that she "didn't try that hard to get [the field tests] right" because she believed she would be arrested no matter how she performed on the tests.

The appellant presented expert witness testimony from Dr. Alfred W. O'Dare concerning an alcohol absorption study he performed on appellant based on weight, height, temperature, and food consumed that day. O'Dare concluded that her BAC at the time of the offense was only 0.08 percent. O'Dare stated that the breath test result was higher than 0.08 percent because her BAC continued to rise from the time appellant stopped drinking.

Dr. James Valentore, Chief Forensic Toxicologist, testified for the Commonwealth. Valentore explained that various factors affect the absorption of alcohol and that alcohol is dissipated at between 0.015 to 0.02 percent per hour. According to Valentore, the appellant's BAC at the time of driving could have been much higher than the 0.11 percent level indicated by the breath test.

I. ADMISSIBILITY OF THE INTOXIMETER TEST RESULTS

This case presents an issue of first impression in Virginia. Code § 18.2-268.9 provides, in part, that a "chemical analysis" of a person's breath will be considered as evidence in a prosecution under Code § 18.2-266. Appellant raises an issue concerning the definition of chemical analysis. Thus, we must determine whether the Intoximeter 3000 performs such a "chemical analysis." For guidance, we look to authority from other jurisdictions that have addressed this issue.

The appellant filed a motion in limine seeking to suppress her breath test results. Her expert witness, Alfred W. O'Dare, testified that the Intoximeter 3000 does not perform a "chemical analysis." He further testified:

[The] instrument ... has no chemicals within it. All it relies on is the energy given off through the chemical bonds that are bombarded with this produced radiation, or produced energy. And there are no chemicals involved. There is no catalyst; there is no chemical reaction.... [The specimen] has not undergone any chemical processes, has not undergone any chemical changes whatsoever.

Peter Marone, Assistant Director of the Division of Forensic Science, who has the responsibility of overseeing the entire breath testing program for the Commonwealth, testified for the Commonwealth. He explained that the Intoximeter 3000 is an "infrared-type of testing device." Marone stated that "[t]he infrared device itself is a chemical measurement of particular molecules.... Infrared spectroscopy is a well-known chemical process. It's a non-destructive chemical test." He concluded that no chemical reaction occurred when the machine is used. However, he testified that the machine performs a chemical analysis because it uses an infrared device to make a chemical analysis of the carbon hydroxyl bond in ethanol. Based upon this evidence, the trial court denied the motion to suppress the breath test results.

"Chemical analysis" has been defined as " 'the corpus of all techniques whereby any exact chemical information is obtained.' " Commonwealth v. Smythe, 23 Mass.App.Ct. 348, 350, 502 N.E.2d 162, 164 (1987) (quoting The New Columbia Encyclopedia 520 (1973)). Holding that an intoxilyzer performed a chemical test, the Supreme Court of Utah found that " ' "chemical test" was intended to mean an analysis of the chemistry of the substances therein referred to--breath, blood, urine or saliva--to determine the subject's blood-alcohol content, and was not intended to refer to the method of testing.' " Collier v. Schwendiman, 709 P.2d 357, 359 (Utah 1985) (quoting People v. Jones, 118 Misc.2d 687, 693, 461 N.Y.S.2d 962, 966 (N.Y.Co.Ct.1983)). The Supreme Court of South Dakota held that " 'chemical analysis' commonly includes 'tests for identifying chemical compounds by their physical properties, as the Intoxilyzer does.' " State v. Richards, 378 N.W.2d 259, 261 (S.D.1985) (quoting City of Dayton v. Schenck, 63 Ohio Misc. 14, 16, 409 N.E.2d 284, 286 (1980)).

The Court of Appeals of Idaho addressed this same issue concerning the Intoximeter 3000 and held that the result obtained by the Intoximeter 3000 is the product of a "chemical test" within the meaning of the Idaho implied consent statute. State v. Nichols, 110 Idaho 823, 828, 718 P.2d 1261, 1266 (1986). The Idaho court stated that "[chemical test] embraces any test that determines the chemical composition of a given substance. That is precisely what the Intoximeter 3000 does. It ascertains an individual's blood-alcohol content by measuring the extent to which his breath is composed of alcohol." Id.

"Other jurisdictions ... have uniformly held that infrared spectroscopy constitutes a 'chemical test' or 'chemical analysis.' " State v. Squires, 311 S.C. 11, 426 S.E.2d 738, 740 (S.C.1992). E.g., Curry v. State, 522 So.2d 887 (Fla.Dist.Ct.App.1988); State v. Moore, 307 A.2d 548 (Del.Super.1973); Fisher v. State, 177 Ga.App. 465, 339 S.E.2d 744 (1986); Haynes v. State, 865 P.2d 753, 753 (Alaska 1993). Appellant cites no authority to support her proposition that only a device that causes a chemical reaction satisfies the statutory requirement of a chemical analysis. We conclude that the evidence proved that the Intoximeter 3000 performs a chemical analysis of a breath sample within the meaning of Code § 18.2-268.9, and we hold that the trial judge did not err in denying appellant's motion to suppress the results of the test.

II. THE CONTESTED JURY INSTRUCTION

The appellant objected to the jury instruction regarding the rebuttable presumption created by the breath test results. She argued that the Commonwealth presented no evidence that her BAC was 0.10 percent or more at the time of the offense. The trial court overruled the appellant's objection and granted the instruction.

"A reviewing court's responsibility in reviewing jury instructions is 'to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises.' " Darnell v. Commonwealth, 6 Va.App. 485, 488, 370 S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)).

The challenged jury instruction stated:

You have received evidence of the amount of alcohol in the blood of the defendant at the time that a chemical test was administered. If at that time there was a 0.10 percent or more of alcohol in the defendant's blood, there is a rebuttable presumption that the defendant had a blood alcohol concentration of 0.10 percent or more at the time of the alleged offense. This presumption may be rebutted by other evidence.

In Davis v. Commonwealth, 8 Va.App. 291, 298, 381 S.E.2d 11, 15 (1989), this Court held that the blood alcohol measurement prescribed by § 18.2-266(i) "is an evidentiary fact which creates a rebuttable presumption that the measurement accurately reflects the blood alcohol concentration at the time of driving."

The evidence showed that the appellant consumed approximately three mixed drinks between about 7:50 p.m. and 10:00 p.m. At 11:26 p.m. the breath test was administered with a result of 0.11 percent BAC. Expert testimony was presented concerning the rate at...