Taylor v. Commonwealth, Record No. 0838-09-1 (Va. App. 3/16/2010)
| Decision Date | 16 March 2010 |
| Docket Number | Record No. 0838-09-1. |
| Court | Virginia Court of Appeals |
| Parties | DONNA LYNN TAYLOR, v. COMMONWEALTH OF VIRGINIA. |
Appeal from the Circuit Court of the City of Norfolk, Norman A. Thomas, Judge.
Michael C. Tillotson (Charles E. Haden, on brief), for appellant.
Craig W. Stallard, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.
Present: Judges Kelsey, Haley and Senior Judge Bumgardner.
The trial court convicted Donna Lynn Taylor of driving under the influence, second or subsequent offense, in violation of Code § 18.2-266. On appeal, Taylor argues the court erroneously considered a prior DUI conviction in California, improperly refused to dismiss the charge because of the arresting officer's failure to obtain a blood test, and based its conviction upon insufficient evidence. We disagree and affirm.
On appeal, we review the evidence in the "light most favorable" to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This principle requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755 759 (1980) (emphasis and citation omitted). Our examination of the record "is not limited to the evidence mentioned by a party in trial argument or by the trial court in its ruling." Bolden v. Commonwealth, 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008). In determining whether there is evidence to sustain a conviction, an appellate court must consider "all the evidence" admitted at trial that is contained in the record. Hamilton v. Commonwealth, 279 Va. 94, 103, 688 S.E.2d 168, 173 (2010) (quoting Bolden, 275 Va. at 147, 654 S.E.2d at 586).
While on patrol one evening in July 2008, Norfolk Police Officer Brandon P. Allison received a dispatch to be on the lookout for an intoxicated driver operating a Ford Mustang with a certain license plate number. He spotted the vehicle traveling about 15 to 20 miles per hour in a 35-mile-per-hour zone. The vehicle twice swerved between the traffic lane and the shoulder. Officer Allison activated his emergency lights and siren in an effort to stop the vehicle. The vehicle overshot a turn into a furrowed driveway and came to a stop on three wheels while suspended on the wall of the driveway. The officer asked the driver, Taylor, what she was doing. Taylor said she was parking in her driveway. Her home and driveway, however, were many blocks away.
Taylor appeared to Officer Allison to be intoxicated. She was very disoriented and confused. She could not exit the vehicle from the driver's side because she had wedged it atop the driveway retaining wall. After Taylor unsuccessfully attempted to back her vehicle off of the wall the officer reached in and took her keys. She exited the vehicle from the passenger side and tried to stand up. Unsteady on her feet, Taylor found it difficult to either stand or walk. Asked if she had taken any narcotics, Taylor said she had taken "four to five codeine pills" about 30 minutes before the stop. Taylor admitted she did not have a prescription for the pills. Taylor was too unstable to successfully perform walk-and-turn and one-legged-stand tests — two standard field sobriety tests. Officer Allison terminated the tests because Taylor "could hardly even stand on her own."
Officer Allison arrested Taylor for driving under the influence of narcotics. Allison asked Taylor to submit to a blood test. When Taylor agreed, Allison contacted Norfolk General Hospital and confirmed they could administer the blood test. He then transported Taylor to the hospital and asked an attending nurse if hospital staff could perform a blood test. Taylor laughed and stated "it was funny that she was never going to be caught and in trouble for this because [the police] were never going to be able to sample her blood." After about an hour to an hour and a half, the attending nurse advised Officer Allison that the hospital's contract with the Norfolk Police Department for blood tests had expired.
Having obtained blood-testing services from DePaul Hospital in the past, Officer Allison contacted that hospital and confirmed it could perform the test. After arriving at DePaul Hospital, Allison and Taylor again waited about an hour to an hour and a half before a staff person advised them that the nurse who normally performed the tests had left for the evening. No one else was certified to administer blood tests. Because more than three hours had elapsed from the time of the arrest, Officer Allison suspended his effort to obtain a blood test and took Taylor to the magistrate's office for booking.
At her trial, Taylor testified she never told Officer Allison she had taken codeine pills. She also denied making the remarks the officer claimed she made at Norfolk General Hospital. She failed the field sobriety tests, Taylor testified, because of gravel on the road and pain from an infected tooth. A physician testified on her behalf that, as a general matter, physical pain could affect the central nervous system and cause both dizziness and a loss of balance. Sitting as factfinder, the trial court rejected Taylor's testimony and found her guilty of driving under the influence of a narcotic under Code § 18.2-266(iii), a second or subsequent conviction.
The trial court convicted Taylor of driving under the influence of narcotics in violation of Code § 18.2-266 and punished her pursuant to Code § 18.2-270(B)(2), which governs repeat DUI convictions between five and ten years after a prior offense either under Virginia law or any "substantially similar laws of any other state . . . ." Code § 18.2-270(E). Taylor was convicted in 2001 under California's DUI statute. Taylor contends on appeal California's DUI statute is not substantially similar to Virginia law because the California statute creates a "rebuttable presumption" of alcohol intoxication when the blood alcohol concentration (BAC) equals or exceeds .08%. The BAC limit under Virginia law, Taylor continues, creates only a permissible inference. Taylor claims this difference makes the statutes dissimilar for purposes of Code § 18.2-270(E)'s recidivism provision. We disagree.
The "substantially similar" standard under Code § 18.2-270(E) does not require the statutes to be exact replicas of each other. They merely must be similar (not identical) in a substantial (not insubstantial) way. The statutes need not "substantially conform in every respect" to each other. Commonwealth v. Ayers, 17 Va. App. 401, 402, 437 S.E.2d 580, 581 (1993) (citation omitted and emphasis added). Thus, we need not scrutinize California's DUI statute for every idiosyncratic, insubstantial difference between it and Virginia's DUI statute. We look instead to the overall purpose of the two statutes, the framework of their principal provisions, and the elements of their respective offenses. See generally District of Columbia v. Fitzgerald, 953 A.2d 288, 303 (D.C. 2007) ().
From this perspective, we find California's DUI statute substantially similar to Virginia's DUI statute. In Virginia, BAC results can create "rebuttable presumptions" applicable to each subset of DUI convictions under Code § 18.2-266. See Code § 18.2-269(A) (applying "rebuttable presumptions" to DUI convictions under clauses (ii), (iii), and (iv) of Code § 18.2-266; Davis v. Commonwealth, 8 Va. App. 291, 298, 381 S.E.2d 11, 15 (1989) (). California law also employs rebuttable presumptions triggered by BAC test results. See Cal. Vehicular Code § 23152(b) (); Cal. Vehicular Code § 23610(a)(3) ().
In neither Virginia nor California are the BAC presumptions mandatory or conclusive. See Yap v. Commonwealth, 49 Va. App. 622, 633, 643 S.E.2d 523, 528 (2007) (); People v. Milham, 205 Cal. Rptr. 688, 698-99 (Cal. Ct. App. 1984) ( "mandatory presumption" approach). Instead, Virginia and California courts treat the presumptions as mere permissible inferences. See Yap, 49 Va. App. at 633, 643 S.E.2d at 528 (); Milham, 205 Cal. Rptr. at 700 (); People v. Randolph, 262 Cal. Rptr. 378, 384 (Cal. App. Dep't Super. Ct. 1989) (same).
For these reasons, we disagree with Taylor's assertion that California's DUI statute is not substantially similar to Virginia's DUI statute. See Moles v. Gourley, 5 Cal. Rptr. 3d 555, 564 (Cal. App. Ct. 2003) (). The trial court, therefore, did not err in treating Taylor's California DUI conviction as a predicate offense for the recidivism enhancement to her punishment under Code § 18.2-270(B)(3).
Taylor argues on appeal Officer Allison's failure to obtain a blood test requires that her DUI conviction be reversed. When a police officer attempts to obtain a blood sample from a DUI...
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