Roseborough v. Com.

• Decision Date: 16 February 2010
• Docket Number: Record No. 2377-07-4.
• Citation: 688 S.E.2d 882,55 Va. App. 653
• Parties: Lawrence W. ROSEBOROUGH v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

688 S.E.2d 882

55 Va. App. 653

Lawrence W. ROSEBOROUGH v. COMMONWEALTH of Virginia.

Record No. 2377-07-4.

Court of Appeals of Virginia, Richmond.

February 16, 2010.

Hunter A. Whitestone (Whitestone, Brent, Young & Merril, P.C., Fairfax, on brief), for appellant.

Susan M. Harris, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: FELTON, C.J., ELDER, FRANK, HUMPHREYS, KELSEY, McCLANAHAN, HALEY, PETTY, BEALES, POWELL and ALSTON, JJ., en banc.

UPON A REHEARING EN BANC

BEALES, Judge.

Lawrence W. Roseborough (appellant) was convicted by the trial court of driving while intoxicated (DWI), in violation of Code § 18.2-266. After granting his petition for appeal, a panel of this Court affirmed his conviction, with one judge dissenting. Appellant's petition for en banc review by this Court was then granted.

Appellant contends that the trial court "err[ed] in admitting" a certificate of analysis containing the results of his breath test because the "test was not administered pursuant to the implied consent law." Essentially, appellant argues that, although he asked the arresting officer to administer a breath test—without the officer prompting or even mentioning the test to appellant—the trial court should have excluded the results of the test to which he voluntarily submitted. He bases this argument on the fact that, although the officer had probable cause for appellant's arrest, he had not seen appellant commit the DWI, as required for a misdemeanor arrest under Code § 19.2-81.

Assuming without deciding that the officer lacked the statutory authority to arrest appellant, we find the trial court did not err in admitting the certificate of analysis from the breath test into evidence. We find the officer did not need to rely on the implied consent statute to obtain the breath sample from appellant because appellant expressly volunteered to provide the sample before the officer could even mention the provisions of the implied consent statute to him. Thus, we affirm appellant's conviction.

I. BACKGROUND¹

On January 15, 2007, Charles Banks was working as a security guard at the Watergate at Landmark apartment complex in the City of Alexandria. At about 2:00 a.m., he "[h]eard an accident." Banks rushed to the scene, which was on the complex's private road rather than on a public street. As he arrived, Banks observed appellant standing beside the open, driver's side door of a pickup truck that had run over the curb of the private road and gotten "stuck" on a hill.

Officer Seth Weinstein responded within thirty minutes of the crash. Appellant told Officer Weinstein that his friend, Jay, was driving the truck, but Jay "ran off." Appellant could not tell the officer Jay's last name his phone number, or his address, other than to say that Jay lived somewhere in the apartment complex. Appellant admitted that he had been drinking at a bar in the District of Columbia. Appellant then said, "I brought [Jay] back here," which the officer believed was an admission that appellant had been driving the truck.

Appellant smelled of alcohol, he swayed as he walked, his eyes were bloodshot and watery, and he spoke very loudly. He refused to perform any field sobriety tests at the scene. The officer arrested him for DWI based on appellant's admissions and the officer's observations at the scene. In a search pursuant to that arrest, Officer Weinstein discovered a remote key for the truck in appellant's pocket. The ignition key was still in the ignition of the truck.

As Officer Weinstein was transporting appellant to the detention center after his arrest, appellant said "he was considering blowing [into the Intoxilyzer²] for [the officer] because [he] had been so nice." Appellant added that "he would blow if [the officer] would consider releasing him if he blew into the Intox[ilyzer]." Officer Weinstein responded that, if appellant's breath test resulted in a blood/breath alcohol concentration (BAC) reading of .05 or less, then appellant "would be presumed to be sober in Virginia and he would be released and not charged" with DWI. When they arrived at the detention center, as the officer was reading the Miranda warnings to him, appellant "brought the subject up and said that he was willing to blow and he wanted to blow." Up to that point, the officer had not decided whether he would even bring up the breath test, as he was not sure that the implied consent law applied when, as here, a suspect was arrested on private property. However, as the officer put it, appellant "made the decision" for him when appellant volunteered to take the test after being informed of his Miranda rights. Officer Weinstein administered the test, appellant blew into the Intoxilyzer, and the breath test resulted in a BAC reading of .09.

At trial,³ Officer Weinstein testified about the events leading to appellant's arrest and appellant's offer to take the breath test. The officer testified that he was a certified Intoxilyzer operator, that he administered the test, that he observed appellant for twenty minutes before administering the test, and that he did not observe any behavior that would have affected the outcome of the test. The officer identified the certificate of analysis that was created when he administered the test, and he identified his signature on the attestation line of the certificate. The Commonwealth then moved for the introduction of the certificate into evidence.

Appellant objected to introduction of the certificate. He argued that, because the officer did not have statutory authority for his arrest under Code § 19.2-81 (both because the DWI, a misdemeanor offense in this case, did not occur in the officer's presence and because the accident did not occur on a public highway), the implied consent statute did not apply to say that appellant was "deemed as a condition of such operation [of his car] to have consented to a blood test or breath test." Therefore, he contended, the certificate was not admissible. Appellant did not argue that the certificate failed to meet any of the evidentiary requirements found in Code § 18.2-268.9 for admission of a certificate of analysis nor did he make any argument regarding hearsay or other rules of evidence. Instead, appellant's sole objection to the introduction of the certificate was that the situation did not constitute "a proper arrest" for the application of the implied consent law to obtain the breath sample, so the certificate was inadmissible. In response to the argument that he voluntarily took the test,⁴ appellant argued that agreeing to the test did not validate his arrest and that the presumption in Code § 18.2-269 would not apply if the breath sample were not obtained pursuant to the implied consent statute.

The trial court overruled appellant's objections and admitted the certificate. The court then found appellant guilty of DWI.

II. ANALYSIS

When examining the issues involved in this appeal, we are mindful that we review the evidence presented to the trial court in the light most favorable to the Commonwealth, as the party that prevailed below, see Flowers v. Commonwealth, 49 Va.App. 241, 249, 639 S.E.2d 313, 317 (2007); however, we review questions of law de novo, see Williams v. Commonwealth, 53 Va.App. 50, 55, 669 S.E.2d 354, 356 (2008).

A. The Question Presented by Appellant

In his argument to the trial court, appellant claimed that his arrest was unlawful and, therefore, Code § 18.2-268.2(A), commonly referred to as the implied consent statute, required the exclusion of the certificate of analysis from his trial. He did not argue to the trial court that a different foundation for the admission of the certificate applied if the breath test was collected without the reliance on the implied consent statute, as he now argues before this Court en banc. Instead, he argued to the trial court that the implied consent statute prohibited admitting this certificate, essentially claiming that a BAC certificate is not admissible under any set of circumstances unless the exact provisions of the implied consent statute are followed.⁵

Appellant continued this argument when he framed his question presented, which reads "Did the trial court err in admitting the certificate of analysis into evidence over the defendant's objection that the breath test was not administered pursuant to the implied consent law?" This question presented clearly assumes that, if a breath test sample is obtained without reliance on the explicit procedures found in the implied consent statute, then the test results are always inadmissible, i.e., if an appellant voluntarily consents to take the test without reference to the implied consent law, then the certificate never comes into evidence at trial.⁶ Thus, the question is premised on a particular interpretation of the implied consent law—one that reads into this section of the Code a provision prohibiting a trial court from ever accepting into evidence a BAC certificate that was created without reliance on the statutory requirement that drivers consent to providing a breath sample when they drive on a public highway.

It is the duty of courts to apply the correct legal principles, and not to blindly follow incorrect "legal" doctrines presented by the parties on appeal. See U.S. Nat'l Bank of Oregon v. Indept. Ins. Agents of Am., 508 U.S. 439, 446-47, 113 S.Ct. 2173, 2178-79, 124 L.Ed.2d 402 (1993) (noting that, even if the parties agree "on the legal issue presented," a court is not limited to the legal theories presented by the parties and may consider and apply alternative interpretations of the law because, otherwise, the courts would be forced to issue advisory opinions about the application of legal frameworks that do not actually exist); Elliott v. Commonwealth, 267 Va. 464, 472, 593 S.E.2d 263, 268 (2004) ("The Court cannot be forced to accept a flawed construction of a statute or prevented from saving a statute...