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Wing v. Com.8/3/2004
William L. Wing was convicted in a bench trial of driving under the influence of alcohol in violation of Code § 18.2-266. On appeal, he contends that the trial court erred in admitting the certificate of blood alcohol analysis from his breath test because the test was not conducted in compliance with Code § 18.2-268.2 et seq., that his coughing during the testing period made him unable to take the breath test, and that a blood test should have been made available to him. He also contends that the trial court erred in denying his motion to dismiss the charge because his evidence rebutted the statutory presumption that he was driving under the influence of intoxicants at the time of his arrest. Finding no error, we affirm Wing's conviction.
BACKGROUND
At approximately 2:50 a.m. on November 9, 2002, Trooper Caren Miller stopped Wing who was traveling south on Interstate 95 near Franconia in Fairfax County. The trooper observed Wing's vehicle swerve from the center lane into the right lane, back into the center lane, swerve into the left lane and then back into the center lane. The trooper also observed the wheels of Wing's car cross over the lane markings several times as he attempted to manipulate the "S" curve at the Springfield interchange.
When the trooper approached the car driven by Wing, she detected a strong odor of alcohol coming from the car, and observed that Wing had red, glassy eyes and slurred speech. Wing performed several field sobriety tests, adequately completing some but failing others. Wing told the trooper that he had consumed two cranberry-vodka drinks about thirty minutes before he was stopped. Wing was arrested for driving under the influence of alcohol and advised of the implied consent law. Wing agreed to take the breath test.
Once he was in the trooper's vehicle, Wing began coughing. At trial, the trooper described Wing's coughing during all relevant periods as "a very dry hacking cough." Wing told the trooper that he had a chest cold and that he had taken Robitussin for his cough about five hours earlier. He was taken to the Fairfax Adult Detention Center where a breath test was administered at 3:25 a.m.
The first time Wing blew a breath sample into the breathalyzer testing device, he did not blow into the breathalyzer for the required time, as a result of his coughing, to provide a sufficient sample to test. The breathalyzer indicated that testing could not be accomplished because there was a "deficient sample." Trooper Miller did not give a printout of this message to Wing. When the breathalyzer was reset in preparation for another test, it indicated a reading of "ambient detected," meaning that the clean air required in the chamber for testing was not present. The breathalyzer does not provide a printout of this particular message. After the breathalyzer was again reset and indicated that it was available to test, Wing provided two valid breath samples. He continued to cough intermittently between the testing periods. The breathalyzer recorded that Wing's blood alcohol content (BAC) was 0.11%. [FN1] Wing was given a printout of the results of this test. During the testing period, Wing did not complain that he was unable to take the test. No blood test was offered to Wing, and he did not request one.
FN1. A blood alcohol concentration of .08 or more creates a rebuttable presumption that the person tested was under the influence of intoxicants at the time of the offense. See Code § 18.2-269; Castillo v. Commonwealth, 21 Va.App. 482, 486, 465 S.E.2d 146, 148 (1995).
*2 At trial, Wing objected to the admissibility of the certificate of analysis because his repeated coughing rendered him unable to take the breath test, and because he was not provided copies of the results of all breath sampl
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