subject: Richmond DUI 18.2-268.2 Driving Under Influence Refusal Breathalyzer Hampton Area Breath Test Physical Inability [print this page] Richmond DUI 18.2-268.2 Driving Under Influence Refusal Breathalyzer Hampton Area Breath Test Physical Inability
ALLEN DALE BENNETT v. COMMONWEALTH OF VIRGINIA
COURT OF APPEALS OF VIRGINIA
33 Va. App. 335
August 29, 2000, Decided
According to Sheppard, when Bennettexited his vehicle, he rocked back and forth between the door and the doorjamb. He appeared unsteady on his feet, and Sheppard smelled alcohol on his breath. His eyes were red and glassy. Bennett told the officer that he had "a couple of beers," but he refused to perform field sobriety tests. Sheppard arrested Bennett for driving under the influence of alcohol and transported him to police headquarters, where he advised him of his rights under the implied consent law. Bennett agreed to take the breath test. Sheppard administered a breathalyzer test several times, but Bennett failed to produce a satisfactory sample. He was taken before a magistrate, who again read him the implied consent law. Again, Bennett did not produce a satisfactory breath sample, and the magistrate charged Bennett with refusal to take the breathalyzer test. He was convicted on the DUI charge and for refusing to submit to the breath test. Allen Dale Bennett, appeals his convictions.
Did the trial court err in ruling that the issue of whether the Commonwealth had complied with Code 18.2-268.2 was a jury issue that it would not decide?
Did the trial court err in refusing to allow the defendant to put on evidence as to the testimony of a material witness who had testified in the [general district] court and who was shown to be unavailable in the trial court?
The ruling made by the trial court upon the motion to dismiss was on the issue of Bennett's ability to take the breath test. Thetrial judge accepted Sheppard's testimony that Bennett repeatedly feigned his attempts to take the breath test, and he rejectedBennett's unsubstantiated theory that he might possibly have an asthmatic condition, making him physically unable to take a breath test. That disposed of the motion to dismiss on the issue of Bennett's physical inability to take the breath test. Because Bennett failed to establish physical inability, he was not entitled to a blood test under Code 18.2-268.2. The Appellate Court held that the Commonwealth fully complied with Code 18.2-268.2. The Court further found that this issue was a question of law and was so decided by the trial judge and was not submitted or intended to be submitted to the jury for determination.
Next issue was that the Defendant moved the court to permit the introduction of the prior testimony of Pamela Peterson, who testified in the general district court as a witness on January 20, 1998, about sixteen months before the circuit court trial. It is well established that testimony given at a former trial is admissible as an exception to the hearsay rule if certain requirements are met:
"(1) The original witness must be unavailable. (2) The witness who is now unavailable must have been testifying under oath (or affirmation) at the former trial. (3) The issues must be substantially the same in both trials. (4) The party against whom the hearsay testimony is now offered (or his privy in interest) must have been a party in the former trial. (5) The witness who is now testifying as to what was said at the former trial must be able to do so with reasonable accuracy."
In the instant case, Bennett never made any attempt to locate Petersonin person at her place of employment. He relied on Peterson to contact him rather than attempting to locate her in the Hampton area. Bennett did not subpoena her at her last place of residence or at her place of employment. The trial judge refused to admit the evidence proposed by Bennett because he failed to prove the former witness was unavailable. The trial judge also found the proposed evidence was speculative. The Circuit Court agreed with these rulings.
Appellate Court affirmed the judgment of the trial court
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content.
