Murray v. Commonwealth, Record No. 1515-05-4 (Va. App. 8/29/2006)

• Decision Date: 29 August 2006
• Docket Number: Record No. 1515-05-4.
• Citation: Murray v. Commonwealth, Record No. 1515-05-4 (Va. App. 8/29/2006), Record No. 1515-05-4. (Va. App. Aug 29, 2006)
• Court: Virginia Court of Appeals
• Parties: FRANK LINWOOD MURRAY, JR. v. COMMONWEALTH OF VIRGINIA.

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Unpublished Opinion

FRANK LINWOOD MURRAY, JR. v.COMMONWEALTH OF VIRGINIA.

Record No. 1515-05-4.

Court of Appeals of Virginia, Alexandria.

August 29, 2006.

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

Thomas K. Plofchan, Jr., for appellant.

Stephen R. McCullough, Assistant Attorney General(Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: Judges Clements, Haley and Senior Judge Annunziata.

MEMORANDUM OPINION^* BY

JUDGE JEAN HARRISON CLEMENTS.

Frank Linwood Murray, Jr., (appellant) was convicted in a jury trial of driving while intoxicated, in violation of Code§ 18.2-266.On appeal, appellant contends the trial court erred in giving certain instructions to the jury and refusing to give other instructions.For the reasons that follow, we affirm appellant's conviction.

As the parties are fully conversant with the record in this case, and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal.

I.BACKGROUND

We view the evidence and all reasonable inferences that may be drawn from that evidence in the light most favorable to the Commonwealth, the party prevailing below.Wiggins v Commonwealth, 47 Va. App. 173, 177, 622 S.E.2d 774, 775(2005).So viewed, the evidence in this case established that, around 3:00 a.m. on September 18, 2004, Officer Stephen Roeseler of the Arlington County Police observed appellant stopped in the middle of the road changing a flat tire of his vehicle.Appellant's tools were "spread out" in the road.Officer Roeseler further observed that the rim of the flattened tire was "dented in."

When Officer Roeseler approached appellant, he detected a "strong" odor of alcohol emanating from him.Appellant's eyes were bloodshot, and he"seemed very excited."He spoke rapidly with little pause.When the officer asked what had happened to his car, appellant was initially "very evasive" but eventually told Officer Roeseler that he thought he had struck something when he left the parking lot of a nearby convenience store around 2:25 a.m. Appellant was not sure what it was he had hit, however.Appellant acknowledged that the vehicle was his and that he had driven it to its present location before stopping to change the flat tire.Appellant also told Officer Roeseler that he had no physical impairment or illness but thought he had taken Lexipro, a prescription anti-anxiety medication, approximately five hours earlier.

Appellant then agreed to perform a series of field sobriety tests.While performing the one-legged-stand test, appellant swayed repeatedly and had to put his foot down about seventeen times.While attempting the walk-and-turn test, appellant was unable to walk in a straight line and "stumbled very badly and almost fell" when he turned around.When instructed by Officer Roeseler to recite the alphabet from D through L, appellant omitted the letter G and, when instructed to count backwards from 62 to 39, he miscounted between 60 and 58 and continued to 30.

When asked by Officer Roeseler whether he had been drinking, appellant said he had had an alcoholic drink called "redheaded sluts" in a bar earlier that night, but he was not sure how many of those drinks he had consumed.Although there was an empty wine bottle in his car, appellant stated he had had no alcohol to drink since leaving the bar.After administering a preliminary breath test, Officer Roeseler placed appellant under arrest for driving while intoxicated.

After being informed of the Virginia implied consent law, appellant submitted to a breath-analysis test administered by Officer Fernando Ordonez.Before administering the test, Officer Ordonez noted appellant's bloodshot eyes and the odor of alcohol emanating from him.Appellant satisfactorily completed the breath-analysis test at 5:10 a.m.According to the certificate of blood alcohol analysis generated by the Intoxilyzer 5000 machine used to perform the breath-analysis test, appellant had a blood alcohol concentration of .20 grams per 210 liters of breath.Officer Ordonez did not observe anything unusual about appellant during the test, and appellant did not indicate, in response to the officer's questions, that he felt ill or had any condition that would interfere with the test.

At trial, appellant testified that he went out to celebrate his twenty-first birthday that night and that he intended to "have a good time."According to appellant, he and a friend went to a bar, where appellant drank a shot of liquor and two beers before leaving the bar around l:00 a.m.After taking his friend home, appellant stopped at the convenience store to get a snack.Appellant explained that the flat tire was the result of his car having struck a pothole as he drove out of the convenience store parking lot.Appellant denied being intoxicated.Appellant's friend testified that he did not observe any signs of intoxication when appellant drove him home after consuming the three alcoholic drinks.

Appellant also testified that he takes Lexipro to treat anxiety and "panic attacks."He further testified that he takes an undisclosed medication for Gastro Esophageal Reflux Disease (GERD), an illness often triggered by anxiety that brings gases or acid painfully from the stomach to the mouth.Appellant testified that on the night he was arrested he experienced GERD twenty or thirty times, and eight or nine times during the twenty-minute period before the breath-analysis test was conducted.He never informed Officer Ordonez that he suffered from GERD or that he had taken GERD medication, testifying "nobody asked" and the subject "never came up."

Richard James McGarry testified as an expert for the defense on "the theory of breath test analysis, the use, operation and internal workings of the Intoxilyzer 5000, and the conduct and evaluation of field sobriety exercises."He testified that two of the four field tests appellant was asked to perform—the backwards counting and the partial alphabet recitation—lack a scientific foundation, are not approved by the National Highway and Traffic Safety Administration, and are irrelevant to a determination whether a person is under the influence of alcohol.The other two tests are accurate two-thirds of the time, he stated.Basing his assessment on Officer Roeseler's description of appellant's performance on the field sobriety tests, McGarry opined that appellant's performance did not "reflect[] severe impairment."

McGarry also testified that breath testing is not an accurate measure of an individual's blood alcohol content because it relies on uniform assumptions that, in actuality, vary with each individual.For example, McGarry testified, breath tests assume that alcohol in the breath is the same as alcohol in the blood when, in fact, the correlation of breath alcohol to blood alcohol varies with each individual.He also noted that breath tests assume a uniform temperature in the mouth, yet individual mouth temperature varies.An elevated temperature in the mouth would create more alcohol in the breath, he explained.

McGarry further explained that the human body dissipates alcohol over time at a rate of assimilation varying from .015 to .010 percent per hour.Applying the .010 rate and factoring in appellant's body weight, McGarry opined that the amount of alcohol appellant admitted consuming between 9:00 p.m. and 1:00 a.m. would not have caused him to be intoxicated when he left the bar at 1:00 a.m. McGarry also opined that appellant's regurgitation or GERD may have triggered an artificially elevated result on the Intoxilyzer 5000 machine.

Alka Bhargava Lohmann, the Breath Alcohol Section Chief at the Virginia Division of Forensic Science, testified for the Commonwealth as an expert on the Intoxilyzer 5000 and the effects of alcohol on the human body.She testified that, because appellant consumed his last drink at least four hours before the breath-analysis test was conducted, appellant's GERD-linked reflux would have had no impact on the results of the breath test.She also testified that the Intoxilyzer 5000 is able to detect the presence of substances in a subject's breath that can falsely elevate a breath test result and will abort the test and inform the tester that an interfering substance was detected.Lohmann further explained that, to register a blood alcohol content of .20 grams per 210 liters of breath at 5:10 a.m., appellant would have to have consumed more than ten ounces of eighty proof liquor, that is approximately seven or eight shots, when he was at the bar.Lohmann also testified that Lexipro's chemical structure does not affect the breath test but may cause drowsiness when combined with alcohol.

Following the close of the evidence, the Commonwealth announced during a discussion of jury instructions that it was proceeding under subsections (i), (ii), and (iv) of Code§ 18.2-266.To that end, the Commonwealth offered InstructionNos. 4 and 5.InstructionNo. 4 read, in pertinent part, as follows:

The defendant is charged with the crime of driving while intoxicated.The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime:

(1) That the defendant was driving or operating a motor vehicle; and

(2) That at the time he had a blood alcohol concentration of 0.08 percent or more of alcohol per 210 liters of breath . . . .

InstructionNo. 4 also informed the jury that, if, in addition to proving beyond a reasonable doubt the above elements, the Commonwealth also proved beyond a reasonable doubt that the defendant"had a blood alcohol concentration of more than 0.15 but not more than 0.20" at the time he was driving or operating a motor vehicle, it "shall find [him] guilty of driving while intoxicated with a blood alcohol concentration of more than 0.15 but not...