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Hammond v. Commonwealth5/11/1993
f this case, the evidence that Hammond requested to take a breath test was both relevant and material. The issue to be resolved at Hammond's DUI trial was his state of sobriety at the time he operated his motor vehicle. See generally Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989). Here, no chemical tests established the state of his sobriety. Consequently, as the Commonwealth correctly asserts, Hammond's state of sobriety had to be decided by consideration of the totality of the circumstances surrounding his conduct, including whether his objective symptoms reflected that he had consumed enough alcoholic beverages to so affect his manner, Disposition, speech, muscular movement, general appearance or behavior as to be apparent to observation. See Brooks v. City of Newport News, 224 Va. 311, 315-16, 295 S.E.2d 801, 804 (1982); Code § 4-2. Thus, the admissibility of Hammond's request to take a breath test must be determined in this context and not in a vacuum.
The Commonwealth offered evidence of objective facts to establish Hammond's state of sobriety, including the results of some field sobriety tests and his admission that he had consumed two beers and one glass of wine. Evidence that Hammond requested a breath test was no less an objective fact. Although the Commonwealth asserts that it was no more than a reflection of Hammond's subjective assessment of his sobriety, in the factual context of this case it also was an objective fact that has at least some tendency to establish the proposition for which it was offered. Hammond reasonably contends that his conduct in making the request was consistent with his assertion that he was not under the influence of the alcohol he had consumed. Although the inference he asked the trier of fact to draw is debatable and, perhaps, of only slight probative value, such does not render it irrelevant. See Jenkins v. Winchester Dep't of Social Servs., 12 Va. App. 1178, 1186, 409 S.E.2d 16, 21 (1991)("Evidence is relevant if it has any logical tendency, however slight, to prove a fact in issue"). Hammond's conduct in requesting a chemical test to establish the alcoholic context of his blood is conduct consistent with innocence, and if accepted for that purpose by the trier of fact, tends to rebut the Commonwealth's evidence that he was under the influence of alcohol. Because whether Hammond was under the influence of the alcohol he admittedly had consumed was the only matter at issue at the DUI trial, the evidence of his request to take a breath test was also material.
For these reasons, I respectfully Dissent. In my view it was error to exclude the evidence of Hammond's request to take the breath test. Because that error was not harmless, I would reverse Hammond's conviction and remand for a new trial if the Commonwealth be so advised.
Judges Footnotes
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