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Weinbender v. Commonwealth11/20/1990
MOON, J.
Betty Weinbender contends the court erred in her driving under the influence trial by allowing the arresting officer to testify as to an out of court statement made in her presence by another driver as to the time of their accident. We hold that the evidence supported a finding that the statement was one which the defendant would have felt herself called upon to deny in the event she did not intend to express acquiescence by her failure to do so. Therefore, the statement was admissible as an adoptive admission to prove that the blood test was administered within the time prescribed by law. We affirm the conviction.
The essential facts are not in dispute. State Trooper D. T. Gaskins was dispatched to an automobile accident in Botetourt County at approximately 1:25 a.m. on the morning of July 11, 1987. When he arrived at the scene, Trooper Gaskins found a police vehicle operated by Deputy Tommy Guill of the Botetourt County Sheriff's Department which had been struck in the left rear by Weinbender's vehicle. Gaskins asked both individuals to sit in his vehicle. Weinbender staggered slightly while walking toward the trooper's vehicle and fell up against her car at one point. She sat in the front passenger seat and Deputy Guill sat in the rear seat while Trooper Gaskins took general accident information from Guill.
Trooper Gaskins noticed an odor of alcohol about Weinbender and asked her what she had to drink. She replied that she had consumed one glass of wine earlier at a friend's house before driving home. Gaskins offered her a preliminary breath test, but did not administer any field sobriety tests. At 2:17 a.m., he placed Weinbender under arrest for driving while intoxicated. He advised her of Virginia's implied consent law and arranged for a blood test to be taken. Gaskins transported Weinbender to the magistrate's office and obtained an arrest warrant at 3:25 a.m.
At Weinbender's trial on December 7, 1987, Trooper Gaskins was called as the Commonwealth's only witness to prove that Weinbender was arrested within two hours of operating her vehicle, as required by Code § 18.2-268 in order to use the chemical test to determine the alcoholic content of her blood. Gaskins testified that Deputy Guill told him that the accident occurred at 12:56 a.m. Defense counsel objected to Gaskins' testimony regarding the time of the accident as inadmissible hearsay. The court ruled that Deputy Guill's statement had been made in Weinbender's presence and was therefore an adoptive admission by her. The blood analysis certificate was then admitted into evidence, showing Weinbender's blood alcohol content to be 0.11 percent.
Weinbender testified she had been to a friend's house and consumed one glass of wine. She said she left between 11:10 and 11:15 p.m. and was on her way home "in the early morning hours" when the accident occurred.
The test for an adoptive admission "is whether [persons] similarly situated would have felt themselves called upon to deny the statements affecting them in the event they did not intend to express acquiescence by their failure to do so." Owens v. Commonwealth, 186 Va. 689, 699, 43 S.E.2d 895, 899 (1947).
With regard to the reliability of such statements
the courts have evolved a variety of safeguarding requirements against misuse, of which the following are illustrative. (1) The statement must have been heard by the party claimed to have acquiesced. (2) It must have been understood by him. (3) The subject matter must have been within his knowledge.... (4) P
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