 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Potts v. Commonwealth8/6/1991
DUFF, J.
Kenneth M. Potts was convicted of drunk driving as a third offense and for refusal to submit to a blood or breath test. He appeals his conviction for drunk driving alleging (1) the testimony of the arresting police officer was inadmissible; and (2) the evidence was insufficient to support his conviction.
Police Officer Boyd Simmons testified that on January 8, 1989, at 1:30 a.m., he arrived at the intersection of 3rd and Main Streets, in Richmond, Virginia. When he arrived on the scene, he found Potts seated behind the steering wheel on the driver's side of the vehicle. The keys were in the ignition, but Simmons did not remember whether the car's engine was still running. Prior to Simmons' arrival on the scene, Potts' car had collided with two other vehicles, one of which was a parked car.
Simmons testified that when he approached the defendant he noticed a strong odor of alcohol about Potts, that his eyes were bloodshot, and that his face was flushed and reddish in color. Simmons assisted Potts out of the car and asked him to move to the sidewalk. During his testimony, Simmons repeatedly referred to his notes, which were made at the scene of the accident. Potts contends Simmons' reliance on his notes demonstrated he had no present recollection of the arrest; therefore, his testimony was inadmissible.
"Refreshed" testimony is admissible if it shows the witness' memory was in fact refreshed and that he or she was then justifying from his or her independent recollection of the events. Norfolk & W. Ry. v. Nottingham & Wrenn, Inc., 139 Va. 748, 763, 124 S.E. 398, 402 (1924). However, the Virginia Supreme Court has found that, although a witness may be unable to recall the details of an event independently of his notes, if he made a correct record of such details at the time of the event, he may use these notes to refresh his memory. Farmer v. Commonwealth, 205 Va. 609, 611, 139 S.E.2d 40, 41 (1964). In Farmer, the trooper acknowledged on cross-examination that he needed the notes he made at the time of the incident to recall the identity of the defendant's truck and the speed at which it passed through radar. Id. at 611, 139 S.E.2d at 41. The Court allowed the trooper to rely on his notes because he had some independent recollection of other circumstances surrounding the arrest. Id. Here, Simmons had some independent recollection of the
events surrounding the arrest. Therefore, he was properly permitted to refer to his notes, made at the time of the arrest, to recall the details of the incident.
Potts also challenges the sufficiency of the evidence supporting his drunk driving conviction. "In order to convict the defendant [of driving under the influence ] it was necessary that the Commonwealth establish two things: (1) that the defendant was operating or driving a motor vehicle, and (2) that he was under the influence of intoxicants at the time he was driving or operating it." Nicolls v. Commonwealth, 212 Va. 257, 258, 184 S.E.2d 9, 10 (1971).
Potts argues that the evidence was insufficient to prove he was operating or driving his vehicle while under the influence of intoxicants. We agree. When the sufficiency of the evidence is challenged on appeal, the Court must consider the evidence in the light most favorable to the Commonwealth, regarding as true all credible evidence favorable to the Commonwealth and all fair inferences reasonably deducible therefrom. Norman v. Commonwealth, 2 Va. App. 518,
|