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Lamay v. Commonwealth4/13/1999
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Benjamin N.A. Kendrick, Judge
George Lamay (appellant) appeals his conviction for driving while intoxicated (DUI). He contends the trial court erred when it refused to allow testimony at his DUI trial relating to his alleged physical inability to take a breath test following his DUI arrest. Appellant argues that, under the DUI statutes, his inability to take a breath test required the Commonwealth to provide him a blood test; absent a blood alcohol test, appellant asserts that the trial court erred in refusing to dismiss the case. Appellant also contends that, due to numerous contradictions and discrepancies in the evidence, the evidence was insufficient to prove his guilt. For the reasons that follow, we reverse appellant's conviction and remand.
I.
Arlington County Police Officer George Lichtenberg arrested appellant on June 7, 1997, and charged him with driving under the influence of alcohol. At the police station, Lichtenberg advised appellant of the implied consent law and about the breath test. The police never obtained breath test results. The police also charged appellant with refusing to take a breath test in violation of Code § 18.2-268.3.
II.
DUI Trial in District Court
On August 7, 1997, the Arlington County General District Court convicted appellant of DUI and sentenced him to sixty days in jail, with fifty-four days suspended. In addition, the court fined him $1,500, with $1,000 suspended, and ordered him to be of good behavior and attend and successfully complete an alcohol safety program. The court suspended his driver's license for one year and granted him a restricted license, allowing him to travel to and from work during working hours.
Refusal Trial in District Court
On September 11, 1997, the Arlington County General District Court tried appellant on the charge of refusing to submit to a breath test. See Code § 18.2-268.3. The district court dismissed the charge.
DUI Trial De Novo in Circuit Court
At appellant's October 30, 1997 trial de novo before the circuit court on the DUI charge, Officer Lichtenberg testified about the events surrounding the stop, arrest and attempt to administer a breath test to appellant. During cross-examination, defense counsel asked Lichtenberg what happened after he advised appellant of the implied consent law. The Commonwealth objected on the basis of relevance. Defense counsel argued, "I would ask that I be allowed to ask what happened at the booking," but the trial Judge sustained the objection.
After the Commonwealth rested, appellant testified. When defense counsel asked appellant about "blow into the [breathalyzer] machine," the Commonwealth objected on the basis of relevance. Appellant contended that evidence surrounding the administration of the breath test was necessary so the trial court could determine "whether or not provisions of 18.2-268 have been violated." The following exchange ensued:
"[DEFENSE COUNSEL]: I would proffer to the court that the Defendant's testimony will be that he was asked to take the breath test, and was told to breath deeply, in preparation for breathing deeply into this machine, that doing so caused him to incur a fit of coughing because of his asthma that he has been suffering from for a number of years. He tried to breath into the machine a number of times. As a result of the coughing because of the asthma, he was not able to do so. He was taken before the magistrate and he was asked to try the test again. He could not because of his coughing and he was issued a citation for refusal.
"THE COURT: That'
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