*1 672 S.E.2d ROSEBOROUGH Lawrence W.
v. Virginia. COMMONWEALTH Record No. 2377-07-4. Virginia, Appeals of
Court of Alexandria. Feb. Merril, (Whitestone, Brent, Young &
Hunter A. Whitestone Fairfax, P.C., brief), for appellant. on (Robert General; McDonnell, Bryden Robert Attorney J. F. General, brief), II, appellee. Appel- Attorney Assistant on brief. submitting lee HUMPHREYS, HALEY and BEALES. Judges
Present: BEALES, J., Judge.
Lawrence W. Roseborough (appellant) was convicted by the trial court driving (DWI), while intoxicated violation of *2 18.2-266. appeal, On he argues trial court erred in admitting a certificate of analysis containing results of his breath test because the “test was not adminis- pursuant tered to the implied consent law.” Specifically, he and, therefore, contends that his arrest was unlawful 18.2-268.2(A), commonly referred as the implied consent statute, required the exclusion of the certificate of analysis from his trial. Assuming without deciding that the officer did not statutory authority have appellant, to arrest we find the trial court did not err in admitting the certificate into evidence given the facts presented in this case. We find the implied consent statute was not used in this case to obtain the breath sample because appellant expressly volunteered to provide sample before the officer could even mention the provisions of Thus, consent statute to him. we affirm appel- lant’s conviction.
BACKGROUND1 15, 2007, January On working Charles Banks was as a guard at the Watergate at Landmark apartment complex City a.m., of Alexandria. At about 2:00 he an “[h]eard scene, accident.” Banks rushed to the which was on the complex’s private road rather than on a public street. As he arrived, Banks appellant observed standing open, beside driver’s-side door of a truck that pickup had run over the curb private road and gotten “stuck” on a hill. responded Seth Weinstein within thirty minutes
Officer. friend, the crash. Appellant told Officer Weinstein that his truck, Jay, driving was but he “ran Appellant off.” could appeal light 1. We review the evidence on in the most favorable to the below, here, Commonwealth, and, therefore, party prevailed who grant fairly also to the Commonwealth all reasonable inferences deduc- 63, 69, Va.App. ible from the evidence. Sabo v. (2002). S.E.2d address, number, or name, Jay’s phone last tell the officer complex. apartment in the say Jay lived other than at a bar in the drinking he had been admitted that Appellant said, [Jay] “I brought then Appellant of Columbia. District an here,” the officer was admission back which believed driving been the truck. appellant had walked, alcohol, swayed as he his he Appellant smelled very loudly. he watery, spoke and eyes were bloodshot sobriety tests at the scene. perform any He refused to field admis- appellant’s him for based on The officer arrested DWI In a at the scene. search sions and the officer’s observations arrest, discovered a remote Officer Weinstein pocket. ignition key truck in was key appellant’s for the in the ignition. still transporting
As Officer Weinstein arrest, “he was detention center after his said *3 Intoxilyzer2] considering blowing [the officer] [into added that “he Appellant because had been so nice.” [he] him if he releasing if would consider [the officer] would blow Intox[ilyzer].” responded into the Officer blew Weinstein that, if resulted in a appellant’s breath test blood/breath (BAC) less, then reading appel- alcohol concentration of .05 or Virginia in and he would presumed lant “would be to be sober they arrived charged” be released and not with DWI. When the Miranda center, reading the detention as officer was him, subject and said warnings appellant “brought up to Up he to willing that he was to blow and wanted blow.” he even the officer had not decided whether would point, test, the breath as he was not sure bring up here, when, was arrested applied suspect consent law it, However, put appellant as the officer private property. him he volunteered to take “made the decision” for when test, blew appellant administered the test. Officer Weinstein test resulted a BAC Intoxilyzer, into the and the breath reading of .09. sample police Intoxilyzer to take a breath
2. An is machine used sample and test that for alcohol content. trial,3 At Officer Weinstein testified about the leading events to appellant’s arrest and appellant’s offer to take the breath test. The officer testified that he was a Intoxilyzer certified operator, test, that he administered the that he observed for twenty minutes test, before administering and that he did not observe any behavior that would have affected the outcome of the test. The officer identified the certificate of that was created when he administered and he identified his signature on the attestation line of the certificate. The Commonwealth then moved for the introduction of that document into evidence.
Appellant objected to introduction of the certificate. He that, argued because the officer did not have statutory author- ity (both arrest under Code 19.2-81 because the DWI, which was a case, misdemeanor offense did occur in the officer’s presence and because the accident did not occur on a public highway), the implied consent statute did not apply say that appellant was “deemed as a condition of such operation his to have [of car] consented to a blood test or Therefore, contended, test.” he the certificate was not admissible. Appellant did not argue that the certificate failed to meet any of the evidentiary requirements found § 18.2-268.9 for admission of a certificate of nor did he make argument regarding hearsay or other rules Instead, evidence. appellant’s sole objection to the introduc- tion of the certificate was that the situation did not constitute “a arrest” for proper application consent law to obtain the breath sample, so the certificate was inadmissi- ble. response argument voluntarily he took the test, appellant argued agreeing to the test did not vali- *4 date his arrest. trial, appellant
3. At suppress also made a motion to the evidence Weinstein, arguing collected Officer that the officer effectuated the probable arrest without cause. The trial court denied this motion. Appellant requested appellate ruling petition review of this in his appeal, grant petition but this Court did not his in relation to that Therefore, question presented. probable the issue of cause is not before us, may finding and we not examine the trial court’s that the officer had probable appellant. cause to arrest See Rules 5A:12 and 5A:15. objections and admit- appellant’s The trial court overruled guilty of court then found appellant ted the certificate. The DWI. the results of that appeal, appellant argues
On must be “the accused first test here inadmissible because were not rule of evidence validly He does reference arrested.” when his suspect, a certificate created that would exclude initiative, perform Intoxilyzer has asked an officer to own being implied test without first informed about consent that the officer did not Appellant simply statute. contends 18.2-268.2, thus, and, provision follow the “arrest” he Specifically, the certificate was not admissible. contends that the could presume officer that consented take test under Code 18.2-268.2 because arrest was and, therefore, improper, excluding court erred in not trial the certificate.
ANALYSIS not have Appellant argues Officer Weinstein did statu- tory him authority arrest under Code 19.2-81. He con- that, 18.2-268.2, tends implied because Code consent statute, applies only statutorily an officer effectuates a where arrest, precluded valid statute admission of the certificate his opinion, trial. For of this we purposes did not have deciding assume without Officer Weinstein See §§ statutory authority to arrest 19.2-81 appellant. However, and 18.2-266. conclusion that the appellant’s precluded of the certificate of statute introduction trial from this premise.4 at his does not follow Appellant apply does not this Court to the Fourth Amendment ask suppress analysis. argument, appellant agreed certificate oral At specifically arguing applied that he was consent statute and that 18.2-268.2 have excluded the certificate of should analysis. argument any general Appellant’s reference rule of does not however, evidence, statutorily but instead is based on unlawful arrest. Therefore, argument suppression motion than a his is more akin to hearsay objection. evidentiary or other *5 Appellant’s ignores analysis a critical fact posture implied this case—Officer Weinstein never read the consent to appellant appellant’s law and did not obtain to consent blow Intoxñyzer into the him of the informing implied consent Instead, appellant law. volunteered to take the test before Officer had even if he implied Weinstein decided could use the obtain sample appellant. consent law to a breath from Appel- actually initiated lant explicitly taking of the test and volunteered take it before he could be informed consent implied statute.5 18.2-268.2(A) § is deemed to when a person addresses
consent a breath test. The statute simply states:
Any person, not, whether licensed or by Virginia oper- who ates a upon motor vehicle a highway, as defined in 46.2- 100, in the Commonwealth shall be deemed as a thereby, condition of such to have operation, consented to have breath, samples blood, of his or both and taken blood breath alcohol, for a chemical test drug, to determine or both blood, drug alcohol and content of if he is his arrested for 18.2-266, 18.2-266.1, violation of B of subsection § 18.2-272 or of a similar ordinance within three hours of alleged offense. 18.2-268.2(A). words, other person driving a on Virginia’s test, has implicitly roads consented to take a breath so officers can refer to this statute when want to convince they a to provide sample driver for test.6 This statute does not address all may instances when breath test be argue appeal, appellant willingness trial At did that his involuntary way. argued test submit or tainted in He him, simply authority fact that the officer did not have to arrest together requirement precede that a with lawful arrest a breath test required taken under the that the trial court though Intoxilyzer his exclude the certificate of from even appellant actually taking initiated the of the breath test himself without being provisions ever consent statute. informed 18.2-268.3, may subjected 6. Under Code a driver be to civil or penalties "unreasonably” refusing to take a breath or blood criminal to Code 18.2-268.2. admissibility addressing no language and includes taken The statute at trial. resulting certificates as the one addressing situations such language contains no to take the here, actually volunteered where a defendant *6 tell him the implied an officer could about breath test before asks to have breath test consent statute. Where a driver here, has no rele- taken, statute on its face as occurred the 335, 340, Pshp., v. Henrico Ltd. 255 Va. vance. See Hubbard (1998) (courts the 335, should look to plain 497 338 S.E.2d statutes). language of Virginia decisions that
Appellant points appellate several test certificates admissibility have addressed the breath that argues required under 18.2-268.2 these cases Code and analysis the in this case. How- the exclusion of certificate ever, clearly distinguishable inapplicable cases are these here. Marion, 254, v. Town 251, 226 Thomas
In Va. 308 S.E.2d 120, 122 (1983), properly Thomas was “not arrested” under the arresting Code because the officer did not have a warrant nor the led did he accident that to the misdemeanor observe arrest, charge. See After 19.2-81. officer implied informed Thomas consent statute. Va. at 253, in the evening, at 121. Later Thomas was S.E.2d warrant, properly arrested to a but this arrest was accident, more than hours7 and the administra two after tion of the test occurred after this second arrest. finding the trial have excluded the certificate court should Supreme from Thomas’s breath Court explained: was is not untimely,
Since the arrest the defendant deemed testing of his have consented breath under Moreover, defendant’s actual con- “implied consent” law. arrest, 18.2-268, precursor At the Thomas’s time of statute, required suspect be current consent that a arrested within of an in order for consent law to two hours accident apply. statute to three hours. Code The current extends time 18.2-268.2(A). Appellant argued the test was adminis- has never tered than three hours after the accident. more sent in upon this case was invalid because it based belief, law, generated by the officer’s recitation of the he Hence, was bound to test. receipt submit certificate in evidence was improper. added).
Id. 308 S.E.2d at (emphasis Thomas, The Supreme Court did not conclude its do, would now have simply finding us Instead, arrest was unlawful “untimely.” specifi- the Court cally added that Thomas’s actual consent was invalid because the officer obtained that informing Thomas that test,” “he was bound to submit to a when law did not actually require provide sample that he a breath because requested sample officer more than two hours after the Here, contrast, accident. Id. Officer in- Weinstein never provisions formed about the of the implied consent *7 statute nor had he even raised the issue of Intoxilyzer an test. Before the officer even the could decide whether of provisions implied situation, the consent statute in applied appellant by initiated saying, any previous this discussion without men- taking tion of consent or of for implied sample a breath he testing, Intoxilyzer that wanted to take the test. appellant As breath provide sample, volunteered to the being provisions without influenced the of the implied law, Thomas, consent those here. provisions are irrelevant argument, rather than supporting appellant’s suggests instead that actual consent to take without reliance provisions implied on the produce the consent can an admissible of analysis. certificate 445, 448, Suffolk,
In Durant v. City Va.App. 358 S.E.2d 732, (1987), the basic occurred sequence same of events Durant statu having Thomas—the officer arrested without arrest, tory for then Durant authority the the officer informed law, Durant implied subsequently consent and submit Thomas, Court, relying ted to a breath test. This found been from the the results of test should have excluded Therefore, Durant 449, at 734. Id. at 358 S.E.2d trial. in Thomas.8 explained, supra, the same test simply reapplies legitimately suspect that a cannot Durant hold Thomas and unlawfully untimely he to if consent a breath arrested, suspect provisions the officer informs the law, then to suspect consents implied consent and he belief that sample a breath under mistaken provide penalized implied refusing under consent law could be 568, 272 Va. 574- to Bristol v. cooperate. See (2006) (A 460, timely arrest 636 S.E.2d “driver’s arrest triggers statutory requirement, [so] consent take may required must be before the driver be to completed added)).9 not the test.” These cases do address (emphasis here, however, where breath test was obtained facts Here, independent to that law. him telling consent law and without the officer ever about 18.2-268.2, actually to take the test. appellant asked Thomas, appellant the defendants Durant and initi- Unlike and, being ated the here without informed that he discussion presumed samples” “to have consented have of his 18.2-268.2, appellant breath taken under Code told the Intoxylizer. officer that he “wanted into the blow” Unlike Thomas, the officers in Durant and Officer Weinstein did not prod taking into use statute Therefore, provisions the breath test. 18.2- 268.2 do not the certificate here. operate exclude arguments have similar to those
Other states
considered
raised
to statutes similar to Code
relation
important
case
Durant.
8. Another
distinction exists between this
*8
Durant,
probable
In
Court found
officer did
have
cause to
the
the
448,
Here,
Va.App.
734.
trial
arrest Durant.
at
358 S.E.2d at
the
(we
probable
court found the officer had
cause to arrest
presume
opinion,
only
supra,
in this
the officer did not have
him).
statutory
probable
authority
finding
to arrest
That
cause
the
subject
question
probable
to
as
of
trial court
is not
review here
the
appeal.
supra
4.
cause is not before us in
See
footnotes 3 &
18.2-268.3,
refusing
unreasonably
to
9. Under
submit to
a driver
suspended
year or
a breath
can have his or
driver's license
for a
test
her
more.
Ward,
v.
People
73,
18.2-268.2. In
307 N.Y.
lant, here, to find that the trial court committed error contend- ing that mere fact that a breath voluntarily “[t]he test is taken does not automatically render the that results of test admissi- ble at However, trial.” We do not necessarily disagree.14 dissent fails to recognize appellant simply that did not argue trial, at argue § and does not on Code appeal, that 18.2-268.9 or any rule of precluded other evidence introduction of the certificate of As the argued here. issue was not trial or appeal, consideration of Code 18.2-268.9 is inap- propriate under Rule and Rule 5A:18 5A:20. 18.2-268.2(A)
Appellant argued that Code only itself, and Thomas, particularly interpreted as in Durant precluded introduction of the of analysis certificate because arrest was unlawful.15 in this Appellant appeal did not discuss evidence, rules of but instead argued that officer never had lawful authority to administer the as the issue was raised in Durant Although and Thomas. perhaps appellant argued precluded should have that Code 18.2-268.9 intro- here, duction assuming of the certificate the dissent’s correct, is argument nonetheless he never made this at trial or Therefore, here, on appeal. we application do consider its especially appellant does not argue as also that the ends of justice require consideration 18.2-268.9. See Rule 5A:18; Commonwealth, 724, 10, v. Singson 749 n. Va.App. 682, (2005). 621 S.E.2d 694 n. 10 errs, The dissent also that majority opinion contends “the made claiming objection that appellant sufficien- cy of any objection that foundation” preserved the certifi- agree necessarily 14. We also do not that was the certificate inadmissi- simply ble under We 18.2-268.9. find that this discussion precluded by Rules 5A:18 and 5A:20. Appellant's position be that no test are if seems to results admissible unlawful, the arrest was whether or not the results are otherwise admissible. However, again, § 18.2-268.9. analysis under cate of inadmissible was the certificate argued never Instead, that the argued he § 18.2-268.9. under Code improp- was the arrest because apply did not statute based trial court Therefore, surprising it is not er. trial The by appellant. made objection only on ruling its from the question to consider never asked court was the dissent. presented perspective the dissent agree We with to re- required was analysis, of the certificate
proponent of that admission arguments against appellant’s spond However, required was not the Commonwealth evidence. admission, the certificate’s objection to every possible address by appellant. presented that were not arguments even ob- specific to answer required only Commonwealth v. & W. Wright make. See jections did Norfolk (1993) (“[A] Co., 160, 170, 427 S.E.2d Ry. Va. *11 invite a trial court to commit not be to litigant permitted will and then be error, failing object, through agreeing either appeal.” of such error on successfully complain permitted Va.App. added)); Neal v. (emphasis cf. (1992) that 416, 422, (explaining 524-25 425 S.E.2d an objection important preserving are of the specifics Therefore, whether or not appeal). issue for evidence of requirements failed to meet the analysis here certificate Appellant on appeal. irrelevant now § 18.2-268.9 is so the based on that any objections made never the certificate prove not required Commonwealth There- 18.2-268.9. requirements met the analysis our do not affect fore, of that statute provisions here.
CONCLUSION implied to the need to resort find the officer did not We sample a breath because law to obtain consent being without informed to the breath test consented explicitly Thus, did not as the officer statute. implied consent about 18.2-268.2(A) sample, to obtain the rely upon Code require statute did not the exclusion of the certificate of analysis here. the trial in admitting
We find court did err the certifi- evidence, and, therefore, cate into we affirm appellant’s convic- tion.
Affirmed.
HUMPHREYS, J., dissenting.
I dissent from the majority’s analysis and its conclusion that by voluntarily the breath taking somehow its in court. I admissibility conceded believe such a is holding to both the rules of contrary existing basic evidence and case Moreover, I law. would hold that court trial erred the results of admitting appellant’s breath test Thus, I implied consent statute. also from judg- dissent ment and would reverse the conviction and remand for a new trial if so the Commonwealth be advised.
The majority implied finds that “the consent statute was not used in case to obtain the breath because sample appel- lant expressly provide sample volunteered to before the even provisions officer could mention the of the con- sent to him.” This majority statute statement factually misleading conflates two otherwise distinct legal appellant’s issues: the voluntariness of test when ar- admissibility rested and the certificate from record, From appellant’s breath test as an exhibit at trial. it is clear trial court based the admission of the applicability certificate on statute. *12 Yet, analysis, majority in what simply ignores its actually to the trial court to find another rationale presented admissibility, for the certificate’s and then substitutes this at The actually majority rationale for one advanced trial. begins “agreed with the notion that because Intoxilyzer,” provisions submit to the con- are From inapplicable. premise, sent statute this flawed taking that of the breath majority then reasons because
465 at ipso admissible the results were voluntary, test was facto trial. ato every out that submission point I must response, act, conducted voluntary whether essentially
breath test 18.2-268.2(A) statutory or not. Our pursuant to Code driving highways contemplates scheme a breath Commonwealth, taking thereby one has consented only This consent can test. See Code § 18.2-268.2. or blood consent. revoking act by an affirmative be withdrawn conducted breath tests distinction between only legal The not is the and those that are 18.2-268.2 pursuant as an necessary to admit the test results order foundation axiomatic to me that criminal trial. It seems exhibit the ad- binding regarding make decisions defendants do not arrest virtue of at the time of their missibility of evidence Judges make with law enforcement officers. cooperation their decisions, to the rules of they do so these is tendered to the fact evidence at the time the evidence Thus, voluntarily that a test is finder. the mere fact breath automatically render the results of that taken does not trial.16 admissible at § 18.2-268.2 in a majority is content to look at Code all in- statute does not address stating
vacuum “[t]his no be taken and includes may stances when a breath test admissibility resulting certifi- addressing language majority opinion). (Emphasis cates of at trial.” sense, majority literal has may be true While re- principles appellate of the most basic overlooked one involves a number of given controversy view. “[W]hen statutes, they together should be read and construed related force, full and effect to each.” give meaning, in order (2003) Inman, 246, 347, 353, Ainslie v. 577 S.E.2d Va. 51, 56, City Chesapeake, v. (citing Kole 247 Va. 439 S.E.2d preliminary are example, of a which 16. For the results always voluntarily, at trial as evidence of taken are never admissible 18.2-267(E); Stacy 22 Va. guilt. also v. see (1996). App. S.E.2d *13 (1994)). Therefore, we cannot merely examine Code isolation, § 18.2-268.2 in but must consider it in relation to other sections of the Code that concern admissibility such evidence.17
Before a certificate of from a may breath test be evidence, admitted into the Commonwealth must first an lay adequate foundation for its admissibility. majority cor- rectly compliance notes that with the consent statute is not necessarily a prerequisite for the admission of the However, results of a breath test. the foundation required for admission other circumstances is far more stringent than that laid by the Commonwealth in this case.
Code 18.2-268.9 categories outlines two of foundational requirements for the use of breath-test results as evidence in a prosecution for driving under the influence of alcohol or drugs.18 For all involving prosecution cases a driving influence, under provides statute in pertinent part: capable To being considered valid be as evidence prosecution §§ under ... 18.2-266 chemical of a person’s breath shall be performed by an individual possess- ing tests, valid license to conduct such a type with equipment and in accordance with methods approved by Department Services, of Criminal Justice Division of Foren- sic Science. The Division accuracy shall test breath-testing equipment every at least once six months. The Division shall training establish a all program for individuals who are to administer Upon the breath tests. person’s successful completion training program, Division him may license to conduct analyses. breath-test Assembly expressly 17. The General has noted that it considers Code §§ through 18.2-268.2 "steps.” 18.2-268.9 as a series of related See ("The steps through §§ Code 18.2-268.11 set forth in 18.2-268.2 relating taking, handling, identifying, disposing 18.2-268.9 samples procedural blood or breath are and not substantive. Substan- added)). compliance (emphasis tial shall be sufficient.” general admissibility While Code 19.2-187 deals with the of certifi- analyses, specifically cates of 18.2-268.9 addresses the use of breath-test results as evidence. of breath test identify specific types Such license shall successfully which the individual has com- equipment upon training---- pleted added). (emphasis 18.2-268.9
Thus, no breath considered be for admis- may test evidence by properly operator sion unless it was conducted licensed properly approved equipment. remaining language § requirements Code 18.2-268.9 states the foundational for the admissibility reporting analyses of certificates the of tests, breath expressly requirements but limits those to breath § tests administered 18.2-268.2 as Code follows: provi- under the Any individual a breath test conducting § sions 18.2-268.2 shall issue a certificate which will of indicate that the test was conducted in accordance with the Division’s specifications, equipment the on which the breath test was conducted has been tested within past the six accurate, months and has been found to be the name of the accused, that prior administration of the test the accused was advised of his right process to observe the and see the blood reading alcohol on the equipment perform used to the test, breath the date and time the sample was taken from accused, content, the the sample’s alcohol and the name of This person the certificate, who examined the sample. when attested by individual conducting shall be any admissible in court in criminal or civil as proceeding evidence therein stated and of facts of analysis results such .... added). § (emphasis 18.2-268.9
Basically, in order to introduce the results of a breath test in any prosecution 18.2-266, under Code the operator and equipment must comply paragraph with the first of Code § 18.2-268.9 part of the foundation for admissibility However, if results. consent statute implied appli- is cable, only foundational remaining requirements are found itself, in Code 18.2-268.9 and the certificate of admissible if the requirements of both the first and second essence, of that paragraphs statute have been satisfied. using a certified properly operator attested certificate when with the approved equipment, coupled applicability statute, provides necessary foundation. implied hand, other if the consent statute does not On the apply, majority suggests, as the then the streamlined statuto- ry requirements admitting foundational the certificate of paragraph contained the second 18.2- circumstances, inapplicable. 268.9 are likewise Under those following laying results would be admissible only the test of a foundation consistent with both the first proper paragraph and the additional requirements imposed 18.2-268.9 prohibiting the traditional rules of evidence such as those See Charles E. hearsay governing expert witnesses. Friend, 14-5(a), Virginia The Law Evidence in at 573 (6th ed.2003). no evidentia- Since the Commonwealth offered foundation, con- ry other than the assertion that applicable sent statute was and the fact that the officer was Intox the trial court would have erred operator,” “certified *15 analysis even under the of the admitting the test results majority. us, question majority
In the approaching presented trial did negative reasons from the and asserts that the court simply not err in the certificate because admitting “appellant trial, argue appeal, did not and does not that Code argue 18.2-268.9 or other rule of evidence introduc- precluded However, making analysis.” tion of the certificate of statement, signifi- majority blithely ignores a number of First, no cant facts in the record. the Commonwealth offered analysis basis for the admission of the certificate alternative consent law. The applicability other than the the foundation for the admission of Commonwealth laid entirely upon applicability based certificate Officer established that 18.2-268.2. Commonwealth that he ad- breathalyzer operator, was a certified Weinstein found statutory presumption sobriety appellant vised 18.2-269(A)(1), substantially and that Weinstein in Code and admit- required taking of the procedures followed all § 18.2-268.2 test to Code ting pursuant the results a breath (the statutes). Thus, et seq implied consent it seems obvious that, context, from the record the exhibit clearly tendered for admission the Commonwealth on the basis of compliance with Code 18.2-268.2.
Second,
objected
to the admission of the certifi-
cate of
pursuant
to the
arguing
Commonwealth failed to establish that he had
been validly arrested—a
for the
prerequisite
admissibility
18.2-268.2(A).
See
pursuant
results obtained
to Code
Commonwealth,
Bristol v.
(2006).
272 Va.
ing that appellant object did not on specifically ground that “Code 18.2-268.9 or other rule preclud- of evidence ed introduction of the certificate of analysis.” Assuming without agreeing Roseborough’s objection lacked the requisite specificity to in put issue the rationale by offered be made is that he did
majority, point the obvious that must if the which object grounds ground upon not have to on other Here, offered object he did had merit. the Commonwealth and, so, in both analysis doing the certificate of into evidence the re- procedurally a foundation consistent with proffered pursuant of a breath test taken to Code 18.2- quirements specifically argued 268.2 and also that the test was adminis- Appel- in consent statute. compliance tered with objected of the certificate based lant then to the admission in perceived admissibility his defect the foundation for upon court, The trial after hear- by advanced Commonwealth. exclusively from both counsel which focused ing argument for the admissi- requirements whether or not the foundational met bility analysis of the certificate of had been statute, consent an considering unpublished and very point from this Court which dealt with the decision issue, appellant’s objection. admitted the evidence over words, the trial court to by other the context of decision admit the certificate of as an exhibit was framed objection the foundation tendered foundation, sufficiency of that and by appellant made of counsel which dealt with both. The rules of arguments surely no more of an advocate order require court here. For these point appeal for than was done preserve reasons, I would reach the disagree majority with the and admissibility of the certificate of merits of the issue of the decided in the court below. argued as 18.2-268.2(A), Virginia’s implied provides: not, oper- who by Virginia whether licensed
Any person, §in defined 46.2- upon highway, ates a motor vehicle thereby, as a shall be deemed the Commonwealth to have operation, to have consented condition of such blood, breath, taken or both blood and breath of his samples alcohol, or both drug, for a chemical test to determine blood, if he is arrested content of his drug alcohol and 18.2-266.1, B 18.2-266, or subsection violation of
471 of of a similar three hours 18.2-272 or ordinance within alleged offense. Thus, of a breath administered results 18.2-268.2(A) in a against Code are admissible the accused influence, for driving long trial under the so as the accused v. validly City Suffolk, arrested. Durant 4 has first been (1987). 445, 448, 732, Appellant 358 734 Va.App. S.E.2d valid, argues statutory for a requirements warrantless in arrest were not satisfied this instance. § 19.2-81
Code delineates the circumstances under which may an officer a a person arrest without warrant. For misdemeanors, an general may rule officer a make warrantless arrest of unless person, the crime was officer’s presence. Galliher v. Common- committed in wealth, (1933). 1014, 1021, 734, 161 Va. S.E. 736 “An officer, offense is committed within the of an presence within rule, meaning of when he has direct personal knowl- his edge, through sight, or it hearing, other senses that is then being there committed.” Id. The offense which was arrested is a misde- meanor, and was not “within presence” committed officer. The officer arrived at scene approximately thirty minutes after the accident. He did not observe drive or operate any way. vehicle in The officer had no “direct personal knowledge” that an offense was “then and there being added). Therefore, Id. (emphasis committed.” appellant’s arrest was invalid unless an to the exception presence requirement of Code 19.2-81 applied. legislature exceptions set forth
“[T]he
certain
misde
19.2-81,
presence
meanor
rule
indicating
deviation from the presence requirement
only
is authorized
Penn v.
these limited circumstances.”
399, 404,
aff'd,
189, 192 (1991),
Va.App.
S.E.2d
244 Va.
(1992).
a is to be “highway” considered any § argues “at location” that Code 19.2-81’s The Commonwealth That, however, is a applies the accident. language to the location of words, only any apply "at misreading location” of the statute. occur, As may location of the accident. the arrest not the where notes, refer the reader to correctly “such accident" words excep- prior that the "accident” language which indicate in "on presence requirement limited to those that occur is tion to the § 19.2-81. highways the Commonwealth.” Code of ... of use of whether or not open public right that is as matter Third New International Dictio- Webster’s thoroughfare.” (1961). nary of contained
Appellant argues “highway” definition in should be arrest applied Code 46.2-100 warrantless However, introductory of requirements Code 19.2-81. of limits the of paragraph application Code 46.2-100 phrases “The stating: following definition words and when title, purpose this title, used have section____” meanings respectively ascribed to them in this added). Put (Emphasis simply, highway the definition used not, itself, 46.2-100 is controlling the issue or not officer whether an can make warrantless arrest of a Nevertheless, person pursuant 19.2-81. this defini- tion, though not controlling, helpful to our as it is “highway” interpreted illustrative how has been courts other circumstances. *19 Supreme
The
of Virginia
consistently
Court
has
held
a
Call,
highway
is
roads. See Furman v.
public
not limited to
439-40,
(1987)
437,
709,
234 Va.
362 S.E.2d
711
(holding
where the
was undisputed
evidence
that the roads around and
complex
a condominium
open
were
to the public twenty-four
a day,
days
hours
seven
a
public
week and the
had never been
by guards
denied access
or
the
gates,
area was a “highway”).
determining
“[T]he
for
a
way
‘highway’
whether
a
depends upon
degree
the
to which the
isway
open to public
Creason,
Mgmt.
use for
vehicular traffic.” Kay
Co. v.
220 Va.
831-32,
(1980).
820,
394,
263
public’s
S.E.2d
401
“The
free
and unrestricted
of a roadway supports
use
the inference that
a
is a
road
the
highway.
roadway’s
Evidence that
users must
obtain either
or
explicit
implicit permission to use the road
Commonwealth,
may refute this inference.” Campbell v.
39
180, 190,
906,
(2002)
Kay
571
Va.App.
S.E.2d
912
(citing
Co.,
402).
Mgmt.
832,
220
at
Va.
at
It
S.E.2d
follows that
if
roadway
a
sufficiently
were
so
to
its
prevent
restricted
as
traffic,
free use
the
for
public
vehicular
roadway
would
§
constitute a highway
46.2-100. See
purposes
v.
(2002)
Caplan Bogard, 264 Va.
219,
(holding
20. The statutory Commonwealth does not claim that of the other exceptions presence requirement apply.