subject: Virginia Beach DUI Lawyers Field Sobriety Driving Under Influence Third Subsequent Offense Two Prior Convictions Norfolk Hampton Chesapeake Portsmouth [print this page] Virginia Beach DUI Lawyers Field Sobriety Driving Under Influence Third Subsequent Offense Two Prior Convictions Norfolk Hampton Chesapeake Portsmouth
LEE BANKS WALKER v. COMMONWEALTH OF VIRGINIA
COURT OF APPEALS OF VIRGINIA
Officer Johnson placed him under arrest for driving under the influence of alcohol. He instructed Walker to blow into the machine "hard enough" until he heard a tone. Walker twice blew ineffectively into the machine, andthe machine registered "invalid sample," Officer Johnson did not attempt to administer the test again. Walker was indicted for driving under the influence of alcohol, third or subsequent offense, in violation of Code 18.2-266, 18.2-270, and 18.2-10. Walker made a motion to dismiss the charge, arguing he was denied the right to and the benefit of breathalyzer results. The motion was denied, and he was convicted.
Issue:
Whether the trial court erred in denying his motion to dismiss the DUI charge (because he was denied the right to and benefit of a breath analysis)?
This court finds that there is sufficient evidence in the record to support the reasonable objective finding by the trial court that Walker deliberately refused to cooperate in submitting a breath sample. Walker had two prior DUI convictions. He was arrested for his third DUI offense after failing three field sobriety tests administered by Officer Johnson. He was taken into custody and was twice given the opportunity to submit to a breathsample. During the first attempted breathalyzer test, Walker barely blew into the machine for consecutive times, which resulted in the machine not being activated to take a valid breath sample. As a result, the breathalyzer operator must wait twenty minutes before attempting to administer a subsequent breath test. It was reasonable for Officer Johnson objectively to conclude that Walker was not cooperating and that he would continue his non-cooperation if additional tests were attempted. Accordingly, the trial court did not abuse its discretion in denying Walker's motion to dismiss. There was sufficient evidence from which the Virginia Beach trial court could conclude beyond a reasonable doubt that Walker was guilty of the DUI offense charged.
This Court affirmed the trial court Judgment.
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.
