Taylor v. Com., 0955-89-2

• Decision Date: 30 April 1991
• Docket Number: No. 0955-89-2,0955-89-2
• Citation: 12 Va.App. 419,404 S.E.2d 78
• Parties: Alexander L. TAYLOR v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 78

404 S.E.2d 78

12 Va.App. 419

Alexander L. TAYLOR v. COMMONWEALTH of Virginia.

Record No. 0955-89-2.

Court of Appeals of Virginia.

April 30, 1991.

J. Burkhardt Beale (Boone, Beale, Carpenter & Cosby, on brief), for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen. and Robert H. Anderson, III, Asst. Atty. Gen., on brief) for appellee.

Present: KOONTZ, C.J., and BENTON and COLE, JJ.

BENTON, Judge.

Alexander L. Taylor was convicted of operating a motor vehicle in violation of Code § 18.2-266(i), while having a blood alcohol concentration (BAC) of 0.10 percent or more by weight by volume as indicated by a breath test. He presents two questions on this appeal: (1) whether the trial judge erred in instructing the jury that the test measured the amount of alcohol at the time of the offense; and (2) whether the trial judge abused his discretion in denying Taylor's motion to enter the Alcohol Safety Action Program (ASAP). We reverse the conviction as to both questions and remand for a new trial.

The evidence at trial proved that police officer Jerome J. George found Taylor at approximately 4 a.m. "slumped over the wheel [and] snoring" in the driver's seat of a van that had collided with a parked car. The van's transmission was in drive and the engine was running. George detected the smell of liquor on Taylor's breath and noted that Taylor's clothing was "somewhat disarranged," his eyes were "watery," and his speech was slurred. George asked Taylor to perform certain coordination tests and noted that Taylor was "staggering" during the tests. George arrested Taylor at approximately 4:15 a.m. and took him to a police station, where Taylor was given a breathalyzer test at approximately 5:06 a.m. The BAC reading was 0.11, a level above the 0.10 statutory minimum.

The trial judge ruled, over Taylor's objection, that the test results were admissible since Taylor was arrested within the statutory limit of two hours after the operation of the van and was tested according to appropriate procedures. Taylor's counsel also moved to strike the Commonwealth's evidence, arguing that the Commonwealth had not offered testimony to establish a link between Taylor's 5:06 a.m. BAC reading and Taylor's BAC at the time of the 3:58 a.m. collision. The trial judge denied the motion to strike.

In his defense, Taylor offered testimony from Peter Marone, assistant director of the Virginia Bureau of Forensic Science, concerning the manner in which the human body handles alcohol. Marone described how a person's BAC level varies according to three phases after alcohol is ingested, and he explained in detail the absorptive phase, the post-absorptive phase, and the final elimination phase. Marone testified that the breath test "measures the blood alcohol at the time the test was actually done." He further testified that he could not determine Taylor's BAC at the time of the accident, unless he had other information, including "the exact time of the drink."

At the conclusion of all the evidence, the Commonwealth offered the following instruction:

You have received evidence of the amount of alcohol in the blood of the defendant at the time of the alleged offense. If there was at that time 0.10 percent or more alcohol in the defendant's blood, there is a rebuttable presumption that the defendant was under the influence of alcohol. This presumption may be rebutted by other evidence.

Taylor objected to the instruction on the ground that the first sentence was inaccurate and contrary to the evidence. The trial judge overruled the objection and gave the instruction. The jury convicted Taylor.

Taylor's counsel requested the trial judge to allow Taylor to attend an Alcohol Safety Action Program (ASAP) instead of receiving the six-month license suspension. The trial judge denied the motion, stating that Taylor's testimony did not indicate that he had a drinking problem and that ASAP is only for persons who "have a drinking problem." In accordance with the jury verdict, the trial judge imposed a fine of five hundred dollars and also suspended Taylor's driving license for six months.

"The purpose of an instruction is to furnish guidance to the jury in their deliberations, and to aid them in arriving at a proper verdict, so far as it is competent for the court to assist them." Cooper v. Commonwealth, 2 Va.App. 497, 500, 345 S.E.2d 775, 777 (1986) (quoting 75 Am.Jur.2d Trial § 573 (1974)). Instructions should relate to and must find support in the evidence of the case. See Terry v. Commonwealth, 5 Va.App. 167, 170, 360 S.E.2d 880, 882 (1987); Johnson v. Commonwealth, 2 Va.App. 447, 457, 345 S.E.2d 303, 309 (1986). "[T]he trial judge should [instruct] the jury as to the law of the case applicable to the facts in such a manner that they may not be misled." Cooper, 2 Va.App. at 500, 345 S.E.2d at 777.

The breath test was given in accordance with the provisions of Code § 18.2-268. Although the test results were properly admitted, the instruction was factually incorrect and contrary to Marone's unrefuted, expert testimony. Marone testified that the test measures the amount of alcohol in the...