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Farmer v. Commonwealth4/10/1990
In a January 8, 1988 bifurcated trial by jury, Michael Larry Farmer, appellant, was convicted of driving under the influence (DUI), a third or subsequent offense within five years in violation of Code § 18.2-266, and of driving after being declared an habitual offender in violation of Code § 46.1-387.8. In this appeal, Farmer argues that the trial court erred by admitting evidence of his prior DUI convictions during the guilt stage of the trial and by admitting evidence of his refusal to perform field sobriety tests. We find that the trial court did not err by admitting evidence of Farmer's prior DUI convictions, but did err in admitting evidence of Farmer's refusal to submit to field sobriety tests.
I. FACTS
At approximately 2:16 a.m. on August 2, 1986, Deputy Sheriff Robert Hoback of the Pulaski County Sheriff's Department observed a purple AMC drive past him in the opposite direction. Hoback recognized the driver of the vehicle as Farmer, whom he had known approximately twenty years. Because Hoback knew that Farmer did not possess a valid driver's license, he turned to pursue Farmer. As Hoback pursued the vehicle, it sped up before turning into a gas station and coming to a stop. Officer Hoback parked his vehicle behind Farmer's and approached Farmer's vehicle. Hoback discovered Farmer in the back seat and his companion in the front passenger seat; no one was in the driver's seat. Hoback testified that he detected a strong odor of alcohol when he assisted Farmer out of the vehicle. According to Hoback, Farmer was unsteady on his feet, was weaving, had slurred speech and glassy eyes, used abusive language, and had a strong odor of alcohol on his breath. On cross-examination, Farmer admitted that he had consumed six to ten beers over a period of several hours thatnight. Over Farmer's objection, Officer Hoback testified that Farmer refused to perform the requested field sobriety tests. The Commonwealth requested and was granted a bifurcated trial. During the guilt phase of the trial, the Commonwealth introduced evidence of Farmer's prior DUI convictions. Farmer's entire traffic record, which included the prior DUI offenses and various other traffic infractions, was introduced during the sentencing phase of the trial.
II. EVIDENCE OF PRIOR DUI CONVICTIONS
Farmer first alleges that the trial court erred by admitting evidence of his prior DUI convictions during the guilt phase of his bifurcated trial for DUI as a third or subsequent offense within five years. Farmer argues that evidence of prior DUI convictions is not part of the substantive offense of driving under the influence in violation of Code § 18.2-266 made punishable by Code § 18.2-270, and, therefore, is not admissible in the guilt stage of a bifurcated trial in accordance with Code § 46.2-943 (formerly Code § 46.1-347.2). We do not construe Code § 46.2-943 as precluding evidence of prior DUI convictions in the guilt stage of a trial for DUI as a third or subsequent offense. Further, we hold that evidence of prior DUI convictions is necessary to prove the substantive offense of driving under the influence as a third or subsequent offense, and therefore, is admissible during the guilt stage of a bifurcated trial.
(1) Code § 46.2-943 allows for a bifurcated trial for traffic offenses and provides, in pertinent part, that " hen any person is found guilty of a traffic offense, the court or jury trying the case may consider the prior traffic record of the defendant before imposing sent
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