LAWRENCE W. ROSEBOROUGH v. COMMONWEALTH OF VIRGINIA
Record No. 100507
SUPREME COURT OF VIRGINIA
January 13, 2011
SENIOR JUSTICE CHARLES
Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and Millette, JJ., and Russell, S.J. FROM THE COURT OF APPEALS OF VIRGINIA
OPINION BY SENIOR JUSTICE CHARLES S. RUSSELL
This appeal of a conviction of driving while intoxicated turns upon the question whether the defendant was lawfully arrested.
Facts and Proceedings
At about 2:00 a.m. on January 15, 2007, Charles Banks was working as a security guard at Watergate at Landmark, an apartment complex in the City of Alexandria. The complex was a gated community served by a system of internal private roads that were not public streets or highways. Banks heard a sound that he thought was a vehicular accident and ran on foot to the scene, arriving a “minute or two” after the crash. He found a pickup truck that had run across the curb of one of the private roads and was “stuck” on a hill. Standing outside the open driver‘s side door of the truck was the defendant, Lawrence W. Roseborough. Except for additional security guards arriving at the scene, no other persons were present. Roseborough told Banks that “his buddy crashed the car and ran off.”
Officer Seth Weinstein of the Alexandria Police Department was dispatched to the scene. Roseborough told him that his friend “Jay” had been driving the truck and “ran into a curb and ran off.” Roseborough told the officer that Jay lived in the apartment complex but he didn‘t know Jay‘s address. He said he had known Jay for several years but he didn‘t know Jay‘s last name or telephone number. Roseborough told the officer that he and Jay had been drinking at a “strip club” in the District of Columbia. Asked why he had come to the apartment complex, Roseborough said, “I brought him [Jay] back here.” Roseborough did not live in the complex. The officer testified that Roseborough had an odor of alcohol on his breath, his face was “very flushed,” and that he was “talkative,” “slightly confrontational” and “very loud.” “His eyes were bloodshot and watery” and he “was swaying a little bit as he walked.” Roseborough refused to take a field sobriety test and the officer arrested him for driving while intoxicated. During a search incident to the arrest, the officer found the remote keyless entry device for the truck in Roseborough‘s pocket. The ignition key was still in the truck.
At the police station, after his Miranda rights had been read to him, Roseborough agreed to submit to an “Intoxilyzer” breath test. Conducted at 4:03 a.m., the Intoxilizer 5000 test showed a result of .09 grams of blood alcohol per 210 liters of breath.
Roseborough was charged by a warrant for driving while intoxicated in violation of
Roseborough appealed his conviction to the Court of Appeals, which granted an appeal limited to the question whether the circuit court erred in admitting the certificate of analysis over his objection that the test was not administered in compliance with the implied consent law. In a memorandum opinion and order dated February 24, 2009, a divided panel of the Court of Appeals affirmed the conviction. Roseborough v. Commonwealth, 53 Va. App. 451, 672 S.E.2d 917 (2009). The Court of Appeals granted a rehearing en banc, and, by a six to five majority, again affirmed. Roseborough v. Commonwealth, 55 Va. App. 653, 688 S.E.2d 882 (2010). We awarded Roseborough an appeal.
Analysis
Because this appeal turns on questions of statutory interpretation, we apply a de novo standard of review. Commonwealth v. Garrett, 276 Va. 590, 599, 667 S.E.2d 739, 744 (2008).
The implied consent law is codified as
The effect of the foregoing provisions is to make admissible as evidence, for the truth of their content, documents that would be inadmissible as hearsay in the absence of the implied consent law. Such certificates are also testimonial in nature, because they are prepared to assist the prosecution in securing a criminal conviction. They therefore have an impact upon a criminal defendant‘s Sixth Amendment right to confront the witnesses against him. See Walker v. Commonwealth, 281 Va. ___, ___, ___S.E.2d ___, ___ (this day decided). For those reasons, the admissibility of certificates of analysis must be carefully limited to situations in which the implied consent law, with all of its attendant protections, is applicable.
Because the applicability of the implied consent law is explicitly limited to situations in which a person is “arrested for violation of
A police officer may, without a warrant, make an arrest for a misdemeanor committed in the officer‘s presence.
A warrantless arrest for a misdemeanor is invalid unless the offense was committed in the presence of the arresting officer, or unless the arrest falls within one of the exceptions enunciated in
The single-vehicle accident in the present case occurred on or beside a private road in a gated, guarded residential complex. The Commonwealth makes no contention that the road was “open to the use of the public for purposes of vehicular travel.” Consequently, the exceptions to the warrant requirement contained in
The Court of Appeals held that the officer did not need to rely on the implied consent law because Roseborough took the breath test voluntarily at the police station. However relevant his willingness may have been to the administration of the test, we consider it irrelevant to the question of the certificate‘s admissibility into evidence. That question of admissibility depended entirely upon the applicability of the implied consent law. For the reasons stated, the Commonwealth was unable to rely on that law in the circumstances of this case.
Conclusion
The circuit court erred in overruling Roseborough‘s objection to admission of the certificate of analysis into evidence at trial and the Court of Appeals erred in affirming the conviction. We are unable to determine to what extent, if any, the fact-finder relied on the erroneously admitted certificate in deciding the case. Accordingly, we will reverse the judgment and remand the case to the Court of Appeals with direction to remand the same to the circuit court for a new trial consistent with this opinion if the Commonwealth be so advised.
Reversed and remanded.