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Sawyer v. Com.5/18/2004
Jennifer Sawyer (appellant) appeals from her bench trial conviction for driving under the influence, third or subsequent offense, a felony in violation of Code §§ 18.2-266 and 18.2-270. [FN1] On appeal, she contends the trial court erroneously admitted a prior uncounseled misdemeanor conviction for driving under the influence where the record failed to show she neither served an active period of incarceration nor received a suspended sentence. She also argues her conviction is invalid because she proved she was physically unable to submit to a breath test and the Commonwealth failed to offer her a blood test or prove such a test was unavailable.
FN1. Appellant also was convicted for refusing to take a blood or breath test in violation of Code § 18.2-268.3. She does not challenge
that conviction in this appeal.
*45 We hold that appellant's prior uncounseled conviction was entitled to a presumption of regularity and, thus, constitutionality. Because appellant offered no rebuttal evidence, we adhere to the presumption that the conviction did not result in an active or suspended jail sentence. Further, we hold the evidence supported the trial court's conclusion that appellant failed to prove she was physically unable to submit to a breath test. In the absence of such proof, appellant was not entitled to a blood test. Thus, we affirm the conviction.
I.
BACKGROUND
At about 2:30 a.m. on September 30, 2002, Chesterfield Police Officer James Kuzicks observed a vehicle driven by appellant making a right turn. Appellant's turn was "wide"; she pulled entirely into the lane for oncoming traffic and proceeded in that lane for about one-tenth of a mile. Before encountering any oncoming cars in that lane, appellant moved her vehicle into the proper lane of travel, but "the right front tires of [her] car went off the hard paved surface in[to] the gravel, grassy area" before returning to the road. Officer Kuzicks stopped appellant's vehicle.
When Officer Kuzicks approached the car, he detected an odor of alcohol emanating from both appellant and her vehicle. Her eyes were bloodshot, she sounded as if she was slurring her words, and she admitted she had been drinking. Officer Kuzicks asked appellant to perform some field sobriety tests and inquired whether she had "any ailments." When appellant said she had difficulty with her legs, Officer Kuzicks accepted her assertion and did not require her to perform any sobriety tests that involved walking.
**83 When appellant failed to complete various field sobriety tests to Officer Kuzicks' satisfaction, he told appellant he suspected her of driving under the influence and offered her a preliminary breath test. Appellant agreed to take the test. On appellant's first attempt with the preliminary breath test machine, appellant "said she had a problem," but she provided *46 a second sample in which she "gave ... plenty of air[ ] and [the machine] worked like it was supposed to."
Officer Kuzicks then arrested appellant and took her to the police station. Kuzicks advised appellant of the implied consent law, and she consented to the breath test. After the required observation period, Officer Kuzicks attempted to administer the test repeatedly over a period of three minutes, but appellant "was not able to give ... a valid reading." "[I]n the middle of taking the first breath test," appellant claimed for the first time that "she had problems with her lungs." Kuzicks recounted the attempts as follows:
When I explained the test, I [said], You need to form a tight seal around the machine and blow hard enough where two small lines will appear on the machine and ... keep those two lines there for approximately eight to ten seconds or until I say stop. When [appellant] started blowing on the breath
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