Overbee v. Com., 831212

• Decision Date: 27 April 1984
• Docket Number: No. 831212,831212
• Citation: 315 S.E.2d 242,227 Va. 238
• Parties: Chuck OVERBEE v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 242

315 S.E.2d 242

227 Va. 238

Chuck OVERBEE v. COMMONWEALTH of Virginia.

Record No. 831212.

Supreme Court of Virginia.

April 27, 1984.

Robert C. Whitestone, Fairfax (Whitestone, Rodway, Phillips, Brent, Young & Merril, P.C., Fairfax, on brief), for appellant.

Roger L. Chaffe, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, STEPHENSON, RUSSELL and THOMAS, JJ.

COCHRAN, Justice.

In a jury trial, Chuck Overbee was found guilty of operating a motor vehicle upon a public highway while under the influence of alcohol. The trial court, pursuant to the jury verdict, sentenced Overbee to serve thirty days in jail and to pay a fine of $500. The court also ordered that his operator's license be suspended for six months and thereafter until the fine and costs were paid. On appeal, Overbee challenges the admissibility in evidence of the results of the blood-alcohol breath test administered to him after his arrest. He further contends that the evidence was insufficient to support his conviction.

The evidence and proceedings in the trial court were set forth in a statement of facts approved by the trial judge. Before trial, the court conducted a hearing on Overbee's motion to suppress evidence of the results of his breath test.

In support of his motion to suppress, Overbee first called as a witness the arresting officer, Trooper L.B. Lacey of the Virginia State Police. Lacey testified that on September 29, 1982, about 9:00 p.m., he was driving south on Interstate Highway 95 in Stafford County when he saw a pickup truck parked in the emergency lane. Stopping to investigate, the trooper approached the truck and found Overbee standing at the front of the vehicle. The hood was up, the engine was not running, and Lacey could not remember whether the keys were in the ignition. The only occupant of the truck was a passenger sitting in the passenger seat.

In answer to Lacey's inquiry, Overbee identified himself as the driver. Lacey, detecting an odor of alcohol, asked Overbee if he had been drinking. Overbee replied that he had consumed one beer. Lacey observed that Overbee's eyes were red but that he "walked all right." There were no alcoholic beverages in the vehicle, and Overbee denied having consumed any alcoholic beverages after stopping the truck. Lacey arrested Overbee at 9:13 p.m., charged him with the offense of which he was subsequently convicted, and advised him of his rights under the "implied consent" law. The breath test, which Overbee elected to take, when administered at 10:47 p.m., showed a blood-alcohol content of 0.16%.

The passenger, Nathaniel Burress, and Overbee also testified in support of the motion to suppress. Both said that they had been together in Washington, D.C., during the day, that Overbee purchased a "fifth" of wine, which he put under the hood in the grill area of his truck, and that they left in the truck to go to Overbee's farm in Orange County. Burress did not see Overbee drink any of the wine or any other alcoholic beverage until they stopped in Stafford County. Both witnesses said that Overbee was having "water problems" with the truck. When Overbee stopped, Burress testified, he took the keys from the ignition, raised the hood, removed the bottle of wine, drank most of its contents, and threw the bottle into bushes off the road just before Trooper Lacey approached.

Overbee testified that he put the wine bottle in the grill to chill it, that he stopped in the emergency lane because of water problems with the truck, that he removed the keys from the ignition to unlock the hood, and that he raised the hood and while "checking the water" drank most of the bottle of wine. When he saw Trooper Lacey approaching, he tossed the bottle into the bushes. He explained his statement to Lacey that he had drunk one beer by saying that he was afraid that if he mentioned his consumption of wine, the trooper might arrest him for drinking in public. Overbee denied having drunk a beer or any other alcoholic beverages before he stopped.

After hearing argument, the trial court denied the motion to suppress the evidence of the results of the breath test. At trial, the Commonwealth presented the testimony of Trooper Lacey and the certificate of analysis of the test. Overbee presented the testimony of Burress and himself. It was stipulated that Lacey, Burress, and Overbee testified to the same facts and circumstances as in the hearing on the motion to suppress. Denying Overbee's motion to strike the evidence and dismiss the charge, the trial court submitted the case to the jury under instructions which are not challenged herein. After the jury returned its verdict, the trial court denied Overbee's motion to set aside the verdict and entered the judgment of which he complains.

Code § 18.2-266, the statute under which Overbee was convicted, makes it unlawful for anyone "to drive or operate any motor vehicle ... while under the influence of alcohol." The "implied consent" law provides that any person who operates a motor vehicle on a public highway is deemed thereby to have consented to have a sample of his blood or breath taken for a chemical test to determine the alcoholic content of his blood if he is arrested for violation of Code § 18.2-266 within two hours of the alleged offense. Code § 18.2-268(b). Any person so arrested must elect to have either the blood or breath sample taken. Id.

An untimely arrest, however, results in exclusion of the certificate of analysis of the blood or breath sample. In Thomas v. Town of Marion, 226 Va. 251 308 S.E.2d 120 (1983), the defendant was involved in an automobile accident about 3:00 p.m., invalidly arrested at 4:35 p.m., then properly arrested at 6:15 p.m. Id. at 253, 308 S.E.2d at 122. Subsequently, he submitted to a breath test; at trial, the certificate of analysis was received in evidence. Id. at 253, 308 S.E.2d at 121. On appeal, we held that the trial court erred in admitting the certificate because the arrest occurred more than two hours after the alleged offense, in violation of the statute, and the defendant's actual consent to the test was invalid because "the officer's recitation of the law" led defendant to the incorrect belief that he had to submit to the test. Id. at 254, 308 S.E.2d at 122.

In the present case, in order for the certificate of analysis to be admissible, Overbee had to be arrested within two hours of the alleged offense of operating his truck on a public highway while under the influence of alcohol. Overbee argues that he was not operating his vehicle when Trooper Lacey arrested him. We agree.

The cases upon which the trial court and the Attorney General rely are distinguishable. In Gallagher v. Commonwealth, 205 Va. 666, 139 S.E.2d 37 (1964), a police officer found defendant sitting in his car, which was stuck in a ditch. The car was in gear, and defendant was accelerating the engine. We held that he was operating the vehicle. Id. at 670, 139 S.E.2d at 40. In Nicolls v. Commonwealth, 212 Va. 257, 184 S.E.2d 9 (1971), defendant was found slumped over the steering wheel. Although a broken transmission rendered his car inoperable, the car was on the road and its engine was running. We held that defendant was operating the car. Id. at 259, 184 S.E.2d at 11. Another defendant, slumped over the steering wheel while the car, with engine running, was on a parking lot was held to be operating the car in Williams v. Petersburg & Commonwealth, 216 Va. 297, 301, 217 S.E.2d 893, 896 (1975).

Finally, in Lyons v. Petersburg, 221 Va. 10, 266 S.E.2d 880 (1980), a defendant was found sitting behind the steering wheel of a wrecked car. Noting that Code § 46.1-1(17) defines "operator" as one "who drives or is in actual physical control of a motor vehicle upon a highway," we held that the evidence was sufficient to establish that defendant was operating his car while...