Morin v. Virginia, Record No. 2200-06-4 (Va. App. 9/18/2007)

• Decision Date: 18 September 2007
• Docket Number: Record No. 2200-06-4.
• Parties: PILAR L. MORIN v. COMMONWEALTH OF VIRGINIA.
• Court: Virginia Court of Appeals

Page 1

Unpublished Opinion

PILAR L. MORIN v. COMMONWEALTH OF VIRGINIA.

Record No. 2200-06-4.

Court of Appeals of Virginia, Alexandria.

September 18, 2007.

Appeal from the Circuit Court of the Arlington County, Benjamin N.A. Kendrick, Judge.

Gilbert K. Davis (Davis & Associates, LLC, on brief), for appellant.

Benjamin H. Katz, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: Judges Clements, Kelsey and McClanahan

MEMORANDUM OPINION^*

JUDGE D. ARTHUR KELSEY

Convicted of drunk driving under Code § 18.2-266, Pilar L. Morin appeals on three grounds. She challenges the sufficiency of the evidence, the alleged multifariousness of the charge, and the constitutionality of rebuttable presumptions applied to prosecutions for driving under the influence. Rejecting these challenges, we affirm Morin's conviction.

I.

On appeal, we review the evidence in the "light most favorable" to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). Viewing the evidence through this evidentiary prism requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted).

So viewed, the record shows that shortly after 2:00 a.m. Morin made a u-turn in her sport utility vehicle over a three-foot high median. Sparks sprayed out of the back of her vehicle as she came down on the other side. After observing Morin scale the median, a police officer gave chase with emergency lights and sirens activated. About five blocks later, Morin stopped her vehicle.

When questioned, Morin admitted to the officer she had been drinking that night and was on her way to another bar. The vehicle had not malfunctioned, Morin conceded, and she was not having any health or medication issues. The officer noticed that Morin smelled of alcohol. She had glassy, watery eyes and slurred speech. She claimed to have consumed less than five alcoholic drinks and expressed concern about being arrested for DUI because of its impact on her job as a school bus driver. The officer administered three field sobriety tests, each of which Morin failed to perform properly. The officer arrested Morin and offered her the opportunity to take a breath test. Morin agreed and gave a breath sample that yielded a breath alcohol concentration of .20 grams per 210 liters of breath.¹

Consistent with the DUI statute, the arrest warrant charged Morin for violating "Section 18.2-266" and then set out the various theories of criminal liability under which she could be convicted. See generally Code § 18.2-266 ("A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii), (iv), or (v)."). The warrant stated Morin drove "while having a blood alcohol concentration of 0.08 percent or more . . . or 0.08 grams or more" per 210 liters of breath (corresponding to subsection (i) of § 18.2-266) or "while under the influence of alcohol" (corresponding to subsection (ii) of § 18.2-266) or while under the influence of drugs or drugs combined with alcohol (corresponding to subsections (iii) and (iv) of § 18.2-266). The warrant further noted Morin's .20 blood alcohol concentration (BAC).²

The general district court found Morin guilty as charged and imposed the minimum mandatory sentence of five days in jail under Code § 18.2-270(A), applicable to convictions accompanied by a BAC of "at least 0.15, but not more than 0.20." Morin appealed to the circuit court and filed a motion to dismiss. Morin pointed out that the arrest warrant charged her with violating Code § 18.2-266 and repeated verbatim each subsection of the statute as alternative grounds for her alleged guilt. That disjunctive method, she asserted, made the warrant multifarious and required the court to dismiss the charge unless the prosecution elected one specific subsection under which to proceed. Morin also attacked the rebuttable presumptions applied by Code § 18.2-269 as an unconstitutional shifting of the burden of proof.

In addition to the arguments made in her written motion, Morin also asserted that the minimum mandatory sentence triggered by a finding of a .20 BAC constituted a "different element" governed by United States v. Booker, 543 U.S. 220 (2005) (distinguishing between "elements of a crime" and mere "sentencing factors" for purposes of the Sixth Amendment). In response to this new argument, the Commonwealth conceded the point, admitting: "we do have to prove all the elements of the DWI, .15 to .20, in order to have the sentencing enhancement." But the Commonwealth distinguished Booker as "a totally different situation, because those were post-trial findings. This is a trial finding."

The court rejected Morin's various motions and tried the case to a jury. The arresting officer presented his testimony about Morin's intoxicated state at the time of her arrest. The officer also presented the certificate of analysis showing the .20 BAC finding from the breath test. After the Commonwealth rested, Morin called her husband and two friends to the stand who testified that Morin had been drinking light beer that night — but not very much. After they testified, Morin took the stand in her own defense. She testified that she, her husband, and her friends had been to various bars that night. She admitted drinking beer but denied ever being intoxicated.

Morin also presented expert testimony from a toxicologist about the tests employed by the Commonwealth to measure BAC. The toxicologist described the rate of absorption of alcohol in a person's blood and the effects of various variables such as body weight, age, size, food consumption, and the like. He added that timing was particularly important. While .03 BAC could be added by each bottle of light beer, the toxicologist estimated that .01 BAC would be eliminated in the blood over an hour's time.

The defense toxicologist concluded that a person of Morin's physical characteristics would have had a .06 BAC if she consumed less than five beers over the time frame described by Morin. He conceded his opinion was "based on the accuracy" of Morin's statements. For the BAC to be as high as .20, the toxicologist said, Morin would have had to consume about ten to eleven beers that night. He added that the breath test may have produced a false reading because of indigestion gas or other factors skewing the sampling procedure.

The court then addressed with counsel the subject of jury instructions. The prosecutor requested a finding instruction that took into account that the jurors could find the BAC "could have been less than .20" but still not as low as the .06 figure hypothesized by the toxicologist. The prosecutor also asked that the instruction permit the jury to convict on either or both of the two relevant theories of liability under Code § 18.2-266 — a per se violation of subsection (i) due to driving with a BAC of .08 or more, or a violation of subsection (ii)'s prohibition of driving under the influence. The trial court agreed and incorporated both in the finding instruction. The court also gave another instruction defining "under the influence" to include an accused who "has drunk enough alcoholic beverages to so affect her manner, disposition, speech, muscular movement, general appearance or behavior as to be apparent to observation."

The last paragraph of the finding instruction included a specific factfinding task: "If you find the defendant guilty because she had a concentration of 0.08 grams or more of alcohol per 210 liters of breath, then you shall indicate whether you find that [her] concentration was: (1) 0.08 or greater, (2) at least 0.15 but less than 0.20 or (3) less than 0.15." Agreeing with the prosecutor, the court explained to Morin's counsel that this language allowed the jurors to find her guilty with "no mandatory minimum" sentence. See Code § 18.2-270(A) (imposing a 5-day mandatory minimum jail term for convictions accompanied by a ≥.15 but ≤.20 BAC and a 10-day term for BACs higher than .20). Neither Morin nor the prosecutor, however, asked the court to instruct the jury on the "rebuttable presumptions" that permit inferences of driving under the influence based upon certain BAC levels. See Code § 18.2-269.

During closing argument, the prosecutor repeated several times that the jury could find Morin guilty under either or both of the two proof regimes approved by Code § 18.2-266(i) and (ii). The verdict form did not distinguish between the two. The guilt option of the verdict form read: "We, the jury, find the Defendant Guilty of DWI, 1^st as charged in the summons, with a Blood Alcohol Content of ____________." During their deliberations, the jury questioned this. "Re: Verdict Sheet," the jurors asked, "[b]ased on a guilty verdict, is the jury required to assess a blood alcohol level by choosing one of the three options in Instruction #4 paragraph #4 (1), (2), or (3) or can we find her guilty without selecting one of the options?" The court answered with an admonition to read the finding instruction carefully. The jury shortly thereafter returned with a verdict reading: "We, the Jury, find the Defendant Guilty of DWI, 1^st as charged in the summons, with a Blood Alcohol Content of (3) less than .15." They added the underscored language by hand.

After the jury imposed punishment, Morin moved to set aside the verdict claiming it rested on insufficient evidence. The only believable BAC evidence, she asserted, was the toxicologist's estimate of a .06 BAC. Having rejected the .20 BAC presented by the Commonwealth, Morin's counsel reasoned, the jury had no choice but to accept the toxicologist's opinion and to acquit her of a subsection (i) violation for driving with a BAC of.08 or more. Alluding...