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Killingsworth v. Commonwealth11/9/1999
Argued at Salem, Virginia
MEMORANDUM OPINION * BY JUDGE JAMES W. BENTON, JR.
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE Robert P. Doherty, Jr., Judge
Kevin Wayne Killingsworth was convicted of driving under the influence of alcohol as a subsequent offense. See Code §§ 18.2-266 and 18.2-270. He contends the trial Judge erred (1) in denying his motion to suppress, (2) by permitting an officer who lacked the requisite training to testify concerning a breath test, and (3) by denying his motion to strike the evidence. For the reasons that follow we affirm the conviction.
I.
"In reviewing a trial [Judge's] denial of a motion to suppress, ' he burden is upon [the defendant] to show that th ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error.'" McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (citation omitted). The standard for evaluating an investigatory detention is as follows:
In order to justify the brief seizure of a person by an investigatory stop, a police officer need not have probable cause; however, he must have "a reasonable suspicion, based on objective facts, that the [person] is involved in criminal activity." In determining whether a police officer had a particularized and objective basis for suspecting that the person stopped may be involved in criminal activity, a court must consider the totality of the circumstances.
Ewell v. Commonwealth, 254 Va. 214, 217, 491 S.E.2d 721, 722 (1997) (citations omitted).
Although we are bound to review de novo the ultimate question of reasonable suspicion, "fact[ual findings] are binding on appeal unless 'plainly wrong.'" McGee at 198 n.1, 487 S.E.2d at 261 n.1 (citations omitted). Moreover, when we review the trial Judge's refusal to suppress evidence, we consider the "evidence adduced at both the trial and suppression hearing." Greene v. Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138, 139 (1994); see also Spivey v. Commonwealth, 23 Va. App. 715, 721, 479 S.E.2d 543, 546 (1997).
An employee at a Hardees' Restaurant testified that on November 9, 1997, he saw Kevin Wayne Killingsworth operating a large Dodge Ram truck on the restaurant's lot. The truck was in a service line with other vehicles, and it was " oving back and forth." Killingsworth was "revving the engine" and moving the truck "like he was almost getting ready to hit the car" in front of him. The employee telephoned the police and reported the incident.
A police officer testified that he was sent to investigate a driver that "was lunging [his truck] forward at other vehicles and . . . yelling out the window." The dispatcher gave the officer the description and license plate number of the truck, told the officer "to investigate a drunk driver at that location," and advised the officer that the restaurant's manager had made the complaint. When the officer arrived at the restaurant, he saw a truck in the service line that matched the description and bore the license plate number he had been given. The officer approached the passenger side window and asked Killingsworth to leave the service line and park the truck.
After Killingsworth parked the truck, the officer spoke with Killingsworth and detected "a strong odor of alcoholic beverage on his breath . . . and bloodshot eyes." The officer asked Killingsworth to exit the truck and perform "field tests." After Killingsworth improperly performed the tests, the officer arrested him for driving under the influence of alcohol. During the encounter, Killingsworth told the officer he had drunk four beers at a bar.
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