Wimbish v. Com.

• Decision Date: 08 April 2008
• Docket Number: Record No. 2873-06-3.
• Parties: William Jerry WIMBISH v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

658 S.E.2d 715

51 Va. App. 474

William Jerry WIMBISH v. COMMONWEALTH of Virginia.

Record No. 2873-06-3.

Court of Appeals of Virginia, Salem.

April 8, 2008.

James W. Haskins (Scott C. Wall, Young, Haskins, Mann, Gregory, McGarry & Wall, P.C., on briefs), Martinsville, for appellant.

Leah A. Darron, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FRANK, HUMPHREYS and HALEY, JJ.

ROBERT J. HUMPHREYS, Judge.

William Jerry Wimbish appeals his conviction for driving a motor vehicle while intoxicated, in violation of Code § 18.2-266, and the mandatory ten-day jail sentence he received as required by Code § 18.2-270. Wimbish raises two issues on appeal. First, he argues that the admission of the "Certificate of Blood Alcohol Analysis" by the trial court violated his confrontation right under the Sixth Amendment to the United States Constitution. Second, he argues that the trial court erred by sentencing him to ten days in jail as required by Code § 18.2-270 because Code § 18.2-270 contains an unconstitutional mandatory presumption. For the following reasons, we affirm the trial court's decision.

I. Background

"Under familiar principles of appellate review, we view the evidence and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party that prevailed below." Banks v. Commonwealth, 41 Va.App. 539, 543, 586 S.E.2d 876, 877 (2003). So viewed, the evidence established that on the night of December 23, 2006, Virginia State Trooper Eric J. O'Connell ("O'Connell") was on patrol in Henry County. While patrolling, he observed a 1984 Mercedes sedan make an unusually wide right turn onto T.B. Stanley Road, nearly running off of the left side of the road. O'Connell followed the Mercedes and observed the vehicle weave back and forth across the road's center yellow lines several times. Suspecting that the driver might be driving under the influence, O'Connell initiated a traffic stop.

Standing at the Mercedes' window, O'Connell asked the driver for his driver's license and registration card. O'Connell immediately smelled alcohol on the driver's breath. O'Connell also observed that the driver's speech was slurred, his eyes were bloodshot, and he had a difficult time taking his driver's license out of his pocket. The driver's license identified him as William Jerry Wimbish ("Wimbish"). O'Connell asked Wimbish to step out of the vehicle. Wimbish stepped out of the vehicle and "swayed heavily" as he walked. He admitted that he had just left a party where he had consumed four beers and two margaritas, consuming the last drink an hour earlier. He stated that he felt intoxicated. Wimbish failed a field sobriety test and refused to take another stating: "There's no need to do any more tests. You know I've had too much to drink." O'Connell placed Wimbish under arrest and took him to the magistrate's office.

At the magistrate's office, O'Connell, a licensed breath test operator, conducted a breath test on Wimbish using the Intoxilyzer 5000. As part of his ongoing training as a breath test operator, O'Connell had recently completed a recertification course through the Department of Forensic Science ("the Department"). In conducting the test, O'Connell completed each step pursuant to a checklist ("the Checklist") provided by the Department. The Checklist contains eleven steps for conducting a breath test.

Following the test, the Intoxilyzer 5000 printed the results on a pre-printed form entitled "CERTIFICATE OF BLOOD ALCOHOL ANALYSIS" ("the Certificate of Analysis"). The Certificate of Analysis form contained a number of blank fields that were filled in by a printer attached to the Intoxilyzer 5000. Some of this information was entered by the machine operator, including 1) the name of the accused, 2) the name of the jurisdiction, 3) the name and license number of the breath test operator and the date the officer's license expires, and 4) the name of the agency conducting the test. Other information printed upon the certificate by the Intoxilyzer 5000 was generated by the machine itself, including 1) the test equipment's number, 2) the last date on which the test equipment was tested, 3) the date and time the breath sample was taken, and 4) the sample's alcohol content. The information provided by the Intoxilyzer on the Certificate of Analysis also indicated that Wimbish's breath had an alcohol content of .22 grams per 210 liters of breath, which is over the statutory limit of 0.08 grams per 210 liters of breath. The Certificate of Analysis indicated that the Intoxilyzer had been tested on November 30, 2005.¹

At the bottom of the Certificate of Analysis is an attestation clause that states:

I certify that the above is an accurate record of the test conducted; that the test was conducted with the type of equipment and in accordance with the methods approved by the Department of Forensic Science; that the test was conducted in accordance with the departments specifications; that the equipment on which the breath test was conducted has been tested within the past six months and found to be accurate; that prior to administration of the test the accused was advised of his right to observe the process and see the blood alcohol reading on the equipment used to perform the breath test, and that I possess a valid license to conduct such test, given under my hand this __ day of ____, 20__.

O'Connell wrote the date of the test in the blank spaces in the attestation clause and signed his name in the box beneath the attestation clause marked "BREATH TEST OPERATOR."

Wimbish was subsequently convicted in general district court of driving while intoxicated, in violation of Code § 18.2-266. Wimbish appealed that conviction to the circuit court. Before trial, Wimbish made a motion asking the trial court to suppress the Certificate of Analysis, arguing that its admission would violate his right of confrontation under the Sixth Amendment to the United States Constitution. The trial court denied his motion, holding that the Certificate of Analysis was not testimonial and therefore did not implicate the Sixth Amendment. The trial court subsequently found Wimbish guilty of driving while intoxicated, in violation of Code § 18.2-266.

After being found guilty, but prior to sentencing, Wimbish argued that the relevant sentencing provision of Code § 18.2-270 is unconstitutional because it contains an unconstitutional mandatory presumption. The trial court rejected his argument and sentenced him to the mandatory ten days in jail pursuant to Code § 18.2-270. This appeal follows.

II. Analysis

A. The Constitutionality of Admitting the Certificate of Analysis

In his first question presented, Wimbish argues that the admission of the Certificate of Analysis violated his right to confrontation under the Sixth Amendment. Specifically, Wimbish claims that the test results provided by the Intoxilyzer 5000 and certain statements made by O'Connell in the attestation clause are testimonial hearsay.

The admissibility of evidence is within the discretion of the trial court, and we review its decisions only for abuse of discretion. Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). However, whether the Certificate of Analysis violates the Sixth Amendment as "`testimonial hearsay' [] is a question of law, reviewed de novo by this Court." Michels v. Commonwealth, 47 Va.App. 461, 465, 624 S.E.2d 675, 678 (2006).

The Confrontation Clause of the Sixth Amendment to the United States Constitution mandates that "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. That "bedrock procedural guarantee applies to both federal and state prosecutions." Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 1359, 158 L.Ed.2d 177 (2004) (citing Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923 (1965)).

In Crawford, the Supreme Court of the United States set out to clarify its Confrontation Clause jurisprudence in order to ensure that it remained "faithful to the Framers' understanding" of the confrontation right. Id. at 59, 124 S.Ct. at 1369. The Court noted that the Confrontation Clause targeted a specific "evil," namely the "civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." Id. at 49, 124 S.Ct. at 1363. That historical concern centered on the admission of ex parte statements taken by government officials, serving "an essentially investigative and prosecutorial function," at trial in lieu of live testimony. Id. at 43, 53, 124 S.Ct. at 1359, 1365. The Court held that, because the right of confrontation developed in response to those specific abuses, "[t]he Sixth Amendment must be interpreted with [that] focus in mind." Id. at 50, 124 S.Ct. at 1363.

For the first time, the Court in Crawford distinguished between "testimonial" and "non-testimonial" statements. The Court reasoned that the Confrontation Clause protects against "testimonial" statements because, by its own language, it only "applies to `witnesses' against the accused—in other words, those who `bear testimony.'" Id. at 51, 124 S.Ct. at 1364 (quoting 1 N. Webster, An American Dictionary of the English Language (1828)). The Court held that the Confrontation Clause bars the "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Id. at 53-54, 124 S.Ct. at 1365. By contrast, the Court held that "[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law," even suggesting that such statements may be "exempted [] from Confrontation Clause scrutiny altogether." Id. at 67, ...