Schreiner v. Commonwealth
| Decision Date | 04 October 2022 |
| Docket Number | 0917-21-3 |
| Parties | PHAEDRA BATES SCHREINER v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG J. Fredrick Watson, Judge
(Joseph A. Sanzone; Sanzone & Baker, L.L.P., on brief) for appellant.
(Jason S. Miyares, Attorney General; Robin M. Nagel, Assistant Attorney General, on brief), for appellee.
Present: Judges Beales, Malveaux and Causey
The trial court convicted appellant of driving while intoxicated in violation of Code § 18.2-266. On appeal, appellant contends that the evidence is insufficient to support her conviction and that the trial court erred when it allowed a police officer to testify as an expert. After examining the briefs and record in this case, the panel unanimously holds that oral argument is unnecessary because "the appeal is wholly without merit." Code § 17.1-403(ii)(a); Rule 5A:27(a). We affirm the trial court's decision.
"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party [below]." Poole v. Commonwealth, 73 Va.App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). In doing so, we discard any of appellant's conflicting evidence, and regard as true all credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from that evidence. Gerald, 295 Va. at 473.
On August 19, 2020, Fleming Taylor departed a mechanic's shop in Boonsboro. While driving she observed a vehicle, driven by appellant, swerving back and forth "from the turning lane to the regular driving lane." Taylor passed appellant but continued to observe appellant in her rearview mirror. Appellant continued to drift in-between lanes and almost rear-ended Taylor more than once. As Taylor and appellant merged onto the expressway, appellant, now in front of Taylor, went up onto the curb then swerved into oncoming traffic as a tractor trailer approached. Appellant swerved back in front of Taylor in time to avoid a head-on collision. Taylor called police dispatch.
Taylor followed appellant until they arrived at a Smoothie King restaurant. When police arrived, Taylor identified appellant's car as the vehicle that had been swerving across the road. Taylor testified that appellant was the driver, and that no other person exited the vehicle while she waited for police to arrive at Smoothie King.
Lynchburg Police Officer Mike Bauserman was dispatched to Smoothie King at 2:10 p.m. When he arrived, he saw the reported vehicle in the drive-thru line. After briefly talking with Taylor, who had parked behind appellant in the drive-thru, Officer Bauserman approached appellant and explained that dispatch had received a complaint about her driving behavior. Appellant stated that "she was very hungry and wanted to get a smoothie." Officer Bauserman asked if she was diabetic, to which she responded "no." During the exchange, appellant removed her sunglasses and Officer Bauserman observed that her eyes were extremely glassy, bloodshot, and looked puffy as if she had been crying. When asked if she had been drinking or using any substances, appellant stated that "she woke up thirty minutes ago and wanted a Smoothie King." He asked her if she had been crying and appellant responded that she preferred not to answer the question. Unprompted, appellant stated that she had just found out her boyfriend had cheated on her.
While appellant sat in her vehicle, Officer Bauserman performed a brief horizontal gaze nystagmus test. He noticed that appellant had difficulty keeping her head steady while she followed his finger with her eyes. During the test, appellant initially stated that she last consumed alcohol around 8:00 p.m. the evening before but later stated that her last drink was around 9:30 p.m . Appellant then offered to sit in her vehicle for three hours and drink her smoothie before driving again.
Officer Bauserman asked appellant to pull her car out of the drive-thru line and into an empty parking space. Appellant did not listen to Officer Bauserman's instructions and struck the curb twice. When appellant could not perform the maneuver, Officer Bauserman asked her to turn off the vehicle, step out, and hand him the keys. Officer Bauserman testified that appellant had difficulty unbuckling her seatbelt and standing outside of the vehicle.
Officer Bauserman testified that he had over eighty hours of field sobriety test training. He affirmed that he had specific training with intoxicated driving and the performance of standard and non-standard field sobriety tests and had worked over 110 driving impairment cases in his 21-year career. The Commonwealth moved for Officer Bauserman to be qualified as an expert in the administration of field sobriety tests. Appellant objected, arguing that Officer Bauserman could not testify as to what caused appellant's poor performance on the field sobriety tests. Appellant conceded that Officer Bauserman could be qualified as an expert in field sobriety test administration. Over appellant's objection, the trial court qualified Officer Bauserman as an expert and allowed him to testify as to causation.
Once appellant was outside the vehicle, Officer Bauserman performed an involuntary eye movement test. He testified that appellant had considerable eye movement. He then asked appellant to complete the nine-step walk and turn test. Appellant was not able to maintain the instructional stance and had trouble balancing. During the test she used her arms for balance, did not touch heel to toe, and took ten steps instead of nine. Officer Bauserman testified that these were all indicators of impairment. Officer Bauserman then had appellant stand on one leg. She had difficulty following instructions, raised her foot immediately, used her arms for balance, and counted incorrectly. Finally, Officer Bauserman administered a nonstandard test. He requested that she say the alphabet from A to Z without singing it. Appellant said the alphabet, but she repeated "O, P" before proceeding normally through the rest.
Given the multiple indicators of impairment, Officer Bauserman offered appellant a preliminary breath test and placed her under arrest at 2:32 p.m. At the magistrate's office, appellant submitted a breath sample test, and the results showed a BAC of .06.
On cross-examination Officer Bauserman agreed that appellant was cooperative during the stop. He also acknowledged that people have different physical capabilities and that he was not familiar with appellant, had never given her a field sobriety test before, and did not know what her sober baseline would be. Officer Bauserman further acknowledged that he had not seen appellant's driving behavior until he asked her to back her car out of the drive-thru line and into a parking space.
Upon the conclusion of the Commonwealth's evidence, appellant moved to strike, arguing that the evidence was insufficient to convict her of driving while intoxicated. The trial court denied the motion.
Appellant testified in her own defense. She disagreed with Taylor's characterization of her driving. Appellant revealed that her previous boyfriend had attempted to kill her and because of that experience she had been diagnosed with PTSD. She testified that when Officer Bauserman unexpectedly knocked on her window her emotions were magnified, and she became extremely uncomfortable. She admitted that she had been crying in her car before speaking with Officer Bauserman. She stated that English is not her first language, and that she had difficulty both understanding Officer Bauserman's instructions and saying the alphabet. On cross-examination, appellant admitted that she drank tequila shots as well as drinks mixed with tequila on an empty stomach before she fell asleep at 3:00 a.m. on the morning of the incident. She explained that she was drinking into the early morning because she was upset upon learning that her boyfriend had slept with a co-worker.
After the defense rested its case, appellant incorporated a renewed motion to strike within her closing argument. Appellant argued that anyone surprised by an officer at their window would be nervous and perform poorly on any tests they may be given. This fact coupled with appellant's PTSD, she argued, caused her to perform poorly on the field sobriety tests. Appellant was also distraught by the recent discovery of her boyfriend's infidelity and had been crying in her vehicle before Officer Bauserman appeared. Additionally, she argued that the Commonwealth did not offer any evidence that she could physically perform any of the movements that Officer Bauserman requested of her. Finally, appellant argued that Taylor's characterization of her driving was incorrect and should not be believed.
The trial court made certain factual findings before pronouncing its verdict, noting that it was required to consider the totality of the circumstances . The trial court found that Taylor and Officer Bauserman were credible. Appellant had swerved in the traffic lanes several times, including into oncoming traffic, struck at least one curb, and almost collided with the rear of Taylor's vehicle. Appellant's eyes were extremely glassy and bloodshot. When Officer Bauserman asked appellant to move her vehicle from the drive-thru lane to a parking spot, she hit a curb. She then had trouble exiting her vehicle and standing. Appellant performed poorly on all three standardized field sobriety tests. The court convicted appellant of driving under the influence and sentenced her to 30 days, with all 30 days suspended for a period of 12 months, and imposed a $250 fine. This appeal follows.
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