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Pearson v. Com.6/8/2004
Donald E. Pearson was convicted in a bench trial of driving under the influence of alcohol, second offense, in violation of Code § 18.2-266. On appeal, he contends the trial court erred in admitting a certificate of blood analysis because, in having him take a blood test rather than a breath test, the arresting officer failed to comply with Virginia's implied consent law. Finding no error, we affirm Pearson's conviction.
I. BACKGROUND
In accordance with familiar principles of appellate review, we "state the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below." Johnson v. Commonwealth, 259 Va. 654, 662, 529 S.E.2d 769, 773 (2000). As relevant to this appeal, the evidence proved that, on August 17, 2002, at approximately 8:07 p.m., Sergeant H.A. Nealy of the Virginia State Police saw Pearson drive into a Mobile gas station in York County. Nealy approached Pearson and observed that Pearson's speech was slightly slurred and that there was a strong odor of alcohol coming from Pearson's person after he exited his vehicle. Pearson's eyes appeared "glassy, watery and bloodshot," and his complexion was flushed. Pearson swayed slightly and was argumentative and "unfocused" as he talked to Nealy. Pearson admitted to the officer that he had consumed three beers over the past two hours at Pizzeria Uno. He also told Nealy he had eaten some chili earlier in the day at Chili's, which had given him indigestion. After Pearson failed several field sobriety tests, Nealy arrested him at 8:29 p.m. for driving under the influence of alcohol. Nealy advised Pearson of his rights *320 under Virginia's implied consent law. Nealy then transported Pearson to the Virginia Peninsula Regional Jail, where he intended to administer a breath alcohol test to him.
In preparation for administering the breath alcohol test, Nealy, "a licensed breath alcohol operator" of the Intoxilyzer 5000 breath analysis machine, inspected Pearson's mouth and, finding no foreign objects, began the requisite twenty-minute observation period at 9:02 p.m. After twenty minutes passed, Nealy, following standard procedure, started the Intoxilyzer 5000 and, after determining the machine was working properly, entered the necessary identifying information obtained from Pearson. At 9:36 p.m., immediately before administering the breath test to Pearson, Nealy asked Pearson if he had burped or belched, and Pearson responded affirmatively. Nealy explained at trial that, although he had not seen or heard Pearson burp during the observation period, he was required, before obtaining a breath sample from him, to ask whether he had burped, because not all burps are susceptible to observation by the operator.
Nealy then began a new twenty-minute observation period. He told Pearson to tell him immediately if he burped again, explaining that burping "could affect his results and create an invalid sample." At 9:37 p.m., Pearson informed Nealy that he had burped again. Nealy began another twenty-minute observation period and once more told Pearson to let him know if he burped again. At 9:38 p.m., Pearson informed Nealy that he had burped again and told the officer that he was "having a tough time" with the chili he had eaten earlier. At trial, Nealy explained that, although he did not observe Pearson burp or belch, he relied upon Pearson's voluntary admissions that he had done so. No evidence was presented to show that Nealy believed Pearson's actions were deliberate attempts to impede the administration of the test or that Pearson was otherwise uncooperative.
Seeking advisement as to Pearson's status under the implied consent law, Nealy took Pearson to see a magistrate. After a brief discussion with the magistrate, Nealy took *321 Pearson to Willia
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