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Hammond v. Commonwealth5/11/1993
ere it was otherwise relevant, admission of evidence of such refusal did not violate the defendant's Fifth Amendment privilege against self-incrimination.
Appellant argues no distinction can be drawn between field sobriety tests and a breath test. Therefore, according to appellant, if evidence of a refusal to take a field sobriety test is relevant as evidence of guilt, evidence of a request to take a breath test should be equally relevant as evidence of innocence. We disagree.
A field sobriety test is not mandatory. It is a test administered by an officer only with the consent of the accused. It provides some immediate indication of whether the accused is guilty or not guilty of the offense. If a defendant refuses to take the test, the refusal may be evidence of guilt. Farmer, 12 Va. App. at 341, 404 S.E.2d at 373. Similarly, we will assume, as appellant argues, that if a defendant readily volunteers to take a field sobriety test, the willingness may be relevant to prove innocence. In either event, the holding of Farmer is that evidence of the accused's refusal to take the test or his actions in voluntarily performing the non -required field sobriety test may be relevant to prove the accused's guilt or innocence.
A blood or breath test is not a voluntary test, as is the field sobriety test considered in Farmer. Upon being arrested for DUI, one is required to take the blood or breath test or suffer additional consequences. Code § 18.2-268.2. Thus, the agreement to take the blood and breath test, as opposed to suffering the consequences of taking neither, does not carry with it the same indicia of being forthcoming as does the willingness to take a voluntary field sobriety test. For this reason, we hold that Farmer does not control our decision. Thus, the request to take the breath test under these circumstances shows nothing about appellant's innocence. Therefore, the evidence is not relevant.
Whether evidence is relevant is usually left to the sound discretion of the trial Judge. Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). Because we here concluded that the evidence of the request for a breath test was not relevant, we hold that the trial court did not err.
Although our reason for holding that the evidence is inadmissible is different from the trial Judge's reason, the judgment must be affirmed. See Thims v. Commonwealth, 218 Va. 85, 93, 235 S.E.2d 443, 447 (1977).
Appellant also argues that his acquittal on the charge of refusal to take the blood test should have been admitted in evidence at the DUI trial. We disagree. " driving under the influence trial and a refusal trial are independent proceedings, and 'the outcome of one is of no consequence to the other.'" City of Virginia Beach v. Reneau, 217 Va. 867, 868, 234 S.E.2d 241, 242 (1977)(per curiam).
We hold that the trial court did not err in refusing to admit the evidence of the appellant's request to take a breath test or in refusing to admit evidence of appellant's acquittal on the refusal charge. Therefore, the judgment is affirmed.
Affirmed.
Koontz, J., Concurring in part and Dissenting in part.
Well established principles guide the resolution of the issues raised by this appeal. "Trial courts must admit evidence which is material and relevant to prove or disprove an element of an offense or an affirmative defense, unles
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