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Neatrour v. Com.9/28/2004
Timothy Jay Neatrour was convicted on his conditional guilty plea of driving under the influence, third or subsequent offense within ten years, under Code § 18.2-266. On appeal, Neatrour contends the trial court erred in finding at the suppression hearing that (1) the result of the "preliminary breath test" (PBT) was admissible and (2) probable cause existed to arrest him. [FN1] Finding no error, we affirm the trial court's judgment.
FN1. The Honorable Thomas D. Horne presided at the hearing on Neatrour's motion to suppress.
As the parties are fully conversant with the record in this case and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal.
I. BACKGROUND
The relevant facts are not in dispute. During the evening of September 1, 2002, Loudoun County Sheriff's Deputy Travis Westgate was on patrol when he observed Neatrour drive through a red light. Westgate executed a traffic stop and approached Neatrour's car on foot. When Neatrour rolled down his window, Westgate detected the odor of alcohol emanating from Neatrour. In response to Westgate's inquiry, Neatrour initially claimed he had not been drinking that evening but later admitted he had consumed "approximately two beers ." Neatrour consented to the performance of field sobriety tests and stepped out of the car for that purpose. Westgate administered three field sobriety tests. Neatrour satisfactorily completed the "finger dexterity" and backward-counting tests; however, he was unable to complete a "nine-step walk and turn test" (step test) to the deputy's satisfaction, as two of his eighteen steps were not in a straight heel-to-toe line.
Deputy Westgate then asked Neatrour "if he wanted to take" a PBT, and Neatrour "said he would submit to the test." Before administering the PBT, Westgate read an "implied consent card" to Neatrour. After administering the PBT and obtaining its result, Westgate arrested Neatrour for driving under the influence. Neatrour "later registered a .09 on the Intoxilyzer tests."
On December 9, 2002, a grand jury indicted Neatrour for driving under the influence, third or subsequent offense within ten years, in violation of Code § 18.2-266.
Neatrour filed a pretrial motion to suppress the post-arrest Intoxilyzer test result, arguing that Deputy Westgate did not have probable cause to arrest him for driving under the influence. The Commonwealth filed a written response to Neatrour's motion to suppress, arguing the deputy had probable cause to arrest Neatrour because he ran a red light, smelled of alcohol, failed a field sobriety test, and registered a blood-alcohol content of "0.116%" on the PBT.
At the suppression hearing, the trial judge indicated that the matter was before the court on Neatrour's motion to suppress for a determination of whether probable cause existed to arrest Neatrour. At the hearing, Neatrour objected to Deputy Westgate's testimony concerning the results of the PBT, arguing the reliability of the PBT had not been established because there was no evidence the PBT machine had been calibrated. The court deferred ruling on the admissibility of the PBT result pending development of the record by the prosecutor.
*2 Responding to the prosecutor's questions, Deputy Westgate described the procedure for using the PBT machine to measure "the alcohol content in one's breath" and explained how the machine was reset before each use to clear any residual alcohol from the machine. He further testified that, although he did not "know exactly how the science" of the machine worked, he was trained to operate the PBT machine and, in the two and a half years since receivin
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