Park v. Commonwealth

• Decision Date: 03 May 2022
• Docket Number: Record No. 0592-21-4
• Citation: 74 Va.App. 635,871 S.E.2d 629
• Parties: Jason PARK v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

74 Va.App. 635

871 S.E.2d 629

Jason PARK

v.COMMONWEALTH of Virginia

Record No. 0592-21-4

Court of Appeals of Virginia, Fairfax.

MAY 3, 2022

Alan J. Cilman, Fairfax, for appellant.

Lindsay M. Brooker, Assistant Attorney General(Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Ortiz and Causey

OPINION BY CHIEF JUDGE MARLA GRAFF DECKER

Jason Park appeals his conviction for refusal of a breath test, second offense.He argues that the trial court erred by denying his motion to suppress the evidence, challenges the information he received about the consequences of refusing a breath test, and contends that the evidence was insufficient to support his conviction.For the following reasons, we affirm.

I.BACKGROUND²

This appeal arises from an encounter that the appellant had with a police officer on November 14, 2019.That day, Officer Aaron Ciarrocchi of the Fairfax County Police Department stopped at the scene of a single-vehicle accident.The car had struck a tree and several bushes but was unoccupied when the officer arrived.The hood was cold, but the engine was warm.Several "Bud Light Platinums" lay on the ground outside the driver's side door of the car.

Officer Ciarrocchi noticed a vehicle, marked as a rideshare service, pull into a nearby parking lot.The appellant, appearing to be uninjured, emerged from behind some bushes.The officer asked him if the crashed car belonged to him.The appellant acknowledged that it did.He explained to the officer that the crash had occurred about five minutes earlier because he turned "too soon" for "the exit."The appellant also mistakenly believed that he had been traveling on Fairfax County Parkway.Officer Ciarrocchi asked for his driver's license, but the appellant could not find it, although it was later discovered in his pocket.

During the conversation, Officer Ciarrocchi noticed that the appellant's speech was slurred, his eyes were bloodshot and glassy, and his breath smelled like alcohol.In response to questioning, the appellant denied drinking any alcohol either before or after the accident.The officer asked the appellant to complete field sobriety tests, but the appellant declined.

Officer Ciarrocchi arrested the appellant for driving under the influence of alcohol (DUI).He then took the appellant to a detention center and asked him to provide a breath sample, but he declined.The officer read him a form notifying him of the consequences of refusal under Virginia's implied consent statute, and the appellant again refused.Officer Ciarrocchi then obtained a search warrant for a blood sample from him.The resulting analysis of the appellant's blood showed an alcohol content of 0.141%, with an error margin of 0.008%.

The appellant was charged with driving under the influence of alcohol, second offense, and refusal to submit to a breath test, second offense.Before trial, he made a motion to suppress the blood test results.He argued that his arrest was not supported by probable cause and was illegal because he was not offered a preliminary breath test at the scene in accordance with Code§ 18.2-267.The appellant also challenged the contents of the "Information About Consequences of Refusal" form, arguing that it did not notify him that in the event of refusal, police could still obtain a blood sample.

The trial court denied the motion.It concluded that probable cause supported the arrest.The court also opined that a preliminary breath test is a "field sobriety test," which the appellant refused, and that regardless "there is no suppression remedy for failure to offer a preliminary breath test."Last, the trial court held that a law enforcement officer is not required to affirmatively inform a driver that another form of test may be given if he or she refuses a breath test under the implied consent law.

At the ensuing bench trial, the appellant made a motion to strike the evidence of the DUI charge, arguing that the Commonwealth did not present sufficient evidence to exclude the hypothesis of innocence that he drank alcohol after the accident occurred.Agreeing that factual scenario was "plausible,"the court granted the motion.The appellant then argued that the implied consent statute did not apply to him because the Commonwealth did not prove that he was driving and that his refusal to submit to the breath test was reasonable.The trial court rejected these arguments and convicted the appellant of refusing to take a breath test, second offense.The appellant was sentenced to sixty days in jail and a fine of $750, with all time and $400 suspended, along with a three-year suspension of his driver's license.

II.ANALYSIS

The appellant challenges the trial court's denial of his motion to suppress, the adequacy of the document informing him about the consequences of refusing a breath test, and the sufficiency of the evidence.We consider each of these challenges in turn.

A.Motion to Suppress

The appellant contends that the trial court erred by denying his motion to suppress.He argues that his arrest was not supported by probable cause and he was not offered a preliminary breath test in accordance with Code§ 18.2-267.

1.Probable Cause

The appellant argues that the officer did not have probable cause to arrest him.He suggests that "the happening of an accident" alone did not provide probable cause for arrest.In addition, he contends that the beer containers on the ground outside the car tended to prove that he drank the beer after he drove the car off of the road rather than before the accident.

"When challenging the denial of a motion to suppress evidence,"the appellant"bears the burden of establishing that reversible error occurred."Mason v. Commonwealth , 291 Va. 362, 367, 786 S.E.2d 148(2016).An appellate court considers the evidence in the light most favorable to the party who prevailed below and affords to that party, in this case the Commonwealth, the benefit of all inferences fairly deducible from that evidence.Id.In ruling on the propriety of a trial court's denial of a motion to suppress, the reviewing court considers the evidence introduced at the suppression hearing as well as the evidence at trial.See, e.g. , Commonwealth v. White , 293 Va. 411, 414 & n.2, 799 S.E.2d 494(2017).

In reviewing the evidence, this Court is bound by the trial court's "findings of historical fact unless ‘plainly wrong’ or without evidence to support them."McGee v. Commonwealth , 25 Va. App. 193, 198, 487 S.E.2d 259(1997)(en banc ).

Under this standard, the appellate court"give[s] due weight to inferences drawn from those facts by resident judges and local law enforcement officers."White , 293 Va. at 414, 799 S.E.2d 494(quotingEvans v. Commonwealth , 290 Va. 277, 280, 776 S.E.2d 760(2015) ).Finally, we review de novo the ultimate question of whether law enforcement "had probable cause to make an arrest."Doscoli v. Commonwealth , 66 Va. App. 419, 424, 786 S.E.2d 472(2016).

The standard for probable cause is well established.Probable cause exists when the facts and circumstances known to the officer "are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed."Al-Karrien v. Commonwealth , 38 Va. App. 35, 47, 561 S.E.2d 747(2002)(quotingTaylor v. Commonwealth , 222 Va. 816, 820, 284 S.E.2d 833(1981) ).This is an objective standard that focuses on the totality of the facts and circumstances.Curley v. Commonwealth , 295 Va. 616, 622, 816 S.E.2d 587(2018).It involves a much lower evidentiary standard than proof beyond a reasonable doubt.E.g. , Maryland v. Pringle , 540 U.S. 366, 371, 124 S.Ct. 795, 800, 157 L.Ed.2d 769(2003);seeDoscoli , 66 Va. App. at 427, 786 S.E.2d 472.

Here, the evidence, viewed objectively and in the light most favorable to the Commonwealth, amply establishes probable cause to arrest.³Officer Ciarrocchi found the appellant's car wrecked on the side of the road.The appellant was hiding in some bushes nearby while waiting for a rideshare service.When questioned, he admitted that he was involved in the accident a short time earlier but denied drinking any alcohol.As they talked, Officer Ciarrocchi noticed that the appellant's speech was slurred, his eyes were bloodshot and glassy, and his breath smelled like alcohol.The appellant did not know the street he was on and could not find his driver's license.Further, he refused to participate in field sobriety tests.SeeJones v. Commonwealth , 279 Va. 52, 59, 688 S.E.2d 269(2010)(considering the driver's "refusal to perform field sobriety tests" along with other evidence in determining whether probable cause supported the arrest for driving under the influence of alcohol).This record, viewed under the proper standard, establishes probable cause to arrest the appellant for driving under the influence of alcohol.SeeCode§ 18.2-266.

2.Preliminary Breath Test

The appellant argues that his arrest was unlawful because the officer did not first offer him a preliminary breath analysis in accordance with Code§ 18.2-267.

Under Code§ 18.2-267(A), any person suspected of driving under the influence of alcohol "shall be entitled, if such equipment is available, to have his breath analyzed to determine the probable alcoholic content of his blood."⁴The statute also directs an investigating law enforcement officer to inform the suspect of his or her rights under the code section.Code§ 18.2-267(F).

The issues that the appellant raises here are (1) whether the officer violated the statute when he did not offer a preliminary breath test to the appellant, and (2) if so, whether the proper remedy is suppression of the evidence.The Court reviews these legal questions de novo.SeeCommonwealth v. Quarles , 283 Va. 214, 220, 720 S.E.2d 84(2012).

Relating to the first question, the trial court held that after the appellant declined field sobriety tests, the police officer did not have to...