Sawyer v. Com.

• Decision Date: 18 May 2004
• Docket Number: Record No. 1366-03-2.
• Citation: 596 S.E.2d 81,43 Va. App. 42
• Parties: Jennifer Lynn SAWYER v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

596 S.E.2d 81

43 Va. App. 42

Jennifer Lynn SAWYER v. COMMONWEALTH of Virginia.

Record No. 1366-03-2.

Court of Appeals of Virginia, Richmond.

May 18, 2004.

Gregory R. Sheldon (Goodwin, Sutton & Duvall, P.L.C., on brief), for appellant.

Margaret W. Reed, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: ELDER, FRANK and HUMPHREYS, JJ.

ELDER, Judge.

Jennifer Sawyer (appellant) appeals from her bench trial conviction for driving under the influence, third or subsequent offense, a felony in violation of Code §§ 18.2-266 and 18.2-270.¹ On appeal, she contends the trial court erroneously admitted a prior uncounseled misdemeanor conviction for driving under the influence where the record .failed to show she neither served an active period of incarceration nor received a suspended sentence. She also argues her conviction is invalid because she proved she was physically unable to submit to a breath test and the Commonwealth failed to offer her a blood test or prove such a test was unavailable.

We hold that appellant's prior uncounseled conviction was entitled to a presumption of regularity and, thus, constitutionality. Because appellant offered no rebuttal evidence, we adhere to the presumption that the conviction did not result in an active or suspended jail sentence. Further, we hold the evidence supported the trial court's conclusion that appellant failed to prove she was physically unable to submit to a breath test. In the absence of such proof, appellant was not entitled to a blood test. Thus, we affirm the conviction.

I. BACKGROUND

At about 2:30 a.m. on September 30, 2002, Chesterfield Police Officer James Kuzicks observed a vehicle driven by appellant making a right turn. Appellant's turn was "wide"; she pulled entirely into the lane for oncoming traffic and proceeded in that lane for about one-tenth of a mile. Before encountering any oncoming cars in that lane, appellant moved her vehicle into the proper lane of travel, but "the right front tires of [her] car went off the hard paved surface in[to] the gravel, grassy area" before returning to the road. Officer Kuzicks stopped appellant's vehicle.

When Officer Kuzicks approached the car, he detected an odor of alcohol emanating from both appellant and her vehicle. Her eyes were bloodshot, she sounded as if she was slurring her words, and she admitted she had been drinking. Officer Kuzicks asked appellant to perform some field sobriety tests and inquired whether she had "any ailments." When appellant said she had difficulty with her legs, Officer Kuzicks accepted her assertion and did not require her to perform any sobriety tests that involved walking When appellant failed to complete various field sobriety tests to Officer Kuzicks' satisfaction, he told appellant he suspected her of driving under the influence and offered her a preliminary breath test. Appellant agreed to take the test. On appellant's first attempt with the preliminary breath test machine, appellant "said she had a problem," but she provided a second sample in which she "gave . . . plenty of air[ ] and [the machine] worked like it was supposed to."

Officer Kuzicks then arrested appellant and took her to the police station. Kuzicks advised appellant of the implied consent law, and she consented to the breath test. After the required observation period, Officer Kuzicks attempted to administer the test repeatedly over a period of three minutes, but appellant "was not able to give ... a valid reading." "[I]n the middle of taking the first breath test," appellant claimed for the first time that "she had problems with her lungs." Kuzicks recounted the attempts as follows:

When I explained the test, I [said], You need to form a tight seal around the machine and blow hard enough where two small lines will appear on the machine and... keep those two lines there for approximately eight to ten seconds or until I say stop. When [appellant] started blowing on the breath machine, she got the two dashes up there, and then she stopped. She failed to keep them there, and she said she couldn't do it. And I informed her that she was doing just fine.

... [Appellant] tried it again, and again she blew for a short time and then stopped. And she did this throughout the duration of the test which is three minutes.... Through the three minutes she kept blowing but not giving me a strong enough sampling or blowing continuously [enough] to give the machine a sampling it could read at which time it read deficient sample.

Officer Kuzicks testified that, based on the training and three years of "experience [he had] had running the machine," he "believe[d] that [appellant] was not trying to give him a proper breath." Kuzicks told appellant he "believed she was not performing the test as she could," that "she was trying to beat the machine," and that he was going to call a magistrate to instruct her on the implied consent law.

The magistrate came to appellant and instructed her on the implied consent law. After an additional twenty-minute observation period, Kuzicks again attempted to administer the test. Appellant "went ahead and began blowing in the machine and then stopped. She did that for a period of three minutes, which resulted again as another deficient sample." Kuzicks testified that, each time he attempted to administer the test, appellant "was doing exactly what [he] said until [he] said, You're just about there. And every time [he] said, You're just about there, just a little bit longer, [appellant] would stop."

Officer Kuzicks informed the magistrate of the results and indicated he was going to charge appellant with refusing to take the breath test. The magistrate then completed a "Declaration of Refusal" form on which he certified that appellant "refuses to permit the taking of a breath and/or blood sample and further refuses to execute the declaration of refusal."

Officer Kuzicks could not recall whether appellant requested a blood test, but said his notes contained no indication that she made such a request. Kuzicks took the position that a blood test "was not available in [appellant's] case because she performed the preliminary breath test like she should have." When asked how the amount of air required for a preliminary breath test "compare[s] to the amount [of air required by] the Intoxilyzer 5000," Officer Kuzicks responded, "It's the exact same type of breath system. It takes deep lung air."

The Commonwealth offered appellant's DMV record as evidence of two prior convictions for driving under the influence, a first offense conviction in 1993 and a second offense conviction in 1996. Appellant objected to admission of the 1993 conviction. The DMV record showed appellant was not represented by counsel in the proceedings that led to that conviction. The record also showed that appellant's license was suspended for twelve months as a result of the conviction. It contained no information regarding whether appellant was sentenced to a term of active or suspended incarceration. Appellant argued that, pursuant to the Supreme Court's ruling in Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002), the Commonwealth had the burden to prove that she received neither active jail time nor a suspended sentence for the 1993 conviction. The trial court admitted the record of conviction over appellant's objection.

Appellant testified in her own behalf. She admitted having five beers during the course of the evening. She claimed she had suffered from chronic wheezing and shortness of breath since she was a child and that she had seen her doctor for such symptoms a week before her arrest, at which time he had given her an inhaler and medication. She said she "tried several times ... to take the test" and that she "just .. could not do it" because of the shortness of breath. "[She] could only blow to a certain point, and [she] could not blow any harder or longer than that." Appellant conceded she was able to give a breath sample when she was arrested in both 1993 and 1996.

Appellant claimed she asked the police officer for a blood test but that he just kept telling her "to blow into that machine." When asked whether she told the magistrate she wanted a blood test, she did not respond directly to the question and indicated merely that "[n]obody was listening to me."

Appellant argued in closing that because she proved she was unable to take the breath test and the Commonwealth failed to prove a blood test was unavailable, the charges should be dismissed. The trial court disagreed and found her guilty of driving under the influence, third offense. It sentenced her to five years but suspended all but 90 days of the sentence for ten years contingent upon certain conditions.

Appellant noted this appeal.

II. ANALYSIS

A. ADMISSIBILITY OF PRIOR UNCOUNSELED CONVICTION

Appellant contends that, in light of the Supreme Court's holding in Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 621764, 152 L.Ed.2d 888 (2002), the Commonwealth bore the burden of proving her uneounseled 1993 conviction did not result in the imposition of a term of active or suspended incarceration. She contends that, because the Commonwealth produced no evidence on this point, the admission of that conviction was error. We disagree. Although the holding in Shelton overrules Virginia's interpretation of federal constitutional law regarding the right to counsel in misdemeanor cases, it does not require any change in Virginia law regarding the allocation of the burden of production or proof in a case involving a collateral attack on a misdemeanor conviction that appears valid on its face. Even after Shelton, appellant bore the burden of producing evidence that her uncounseled misdemeanor DUI conviction resulted in the imposition of a period of incarceration, whether active or suspended. Because appellant failed to meet that burden, the admission of her uncounseled 1993...