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Groggins v. Commonwealth11/28/2000
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY George E. Honts, III, Judge
A jury convicted Philip Butler Groggins of driving under the influence of alcohol in violation of Code § 18.2-266. He argues the trial court erred by limiting his toxicologist's testimony and when instructing the jury. Finding no error, we affirm.
Botetourt County Deputy C.L. Cook stopped the defendant for driving 67 miles per hour in a 45 mile-per-hour zone. He detected a strong odor of alcohol, and after conducting sobriety tests and an alcosensor test, he arrested the defendant for driving under the influence . The defendant refused to submit to a blood or breath test.
At trial, the defendant testified that between 7:30 and 10:00 p.m. he consumed two one-and-a-half-ounce drinks of vodka and a glass of wine with dinner. He presented a toxicologist, Richard J. McGarry, who testified extensively on the absorption and dissipation rates of alcohol in the blood stream. The trial court permitted McGarry to answer a hypothetical question that, given the defendant's size and alcohol consumption, the amount of alcohol consumed would be insufficient to cause a person to drive unsafely. However, the trial court did not permit the toxicologist to state his opinion that defendant's blood alcohol content would have been between .02% and .03%.
The defendant contends the trial court abused its discretion in prohibiting McGarry from specifying the defendant's blood alcohol content at the time of the offense. He argues the statutory presumptions applied to the toxicologist's opinion, and the trial court erred in not instructing on them. The trial court refused defense Instruction Z, which stated that a person with a blood alcohol concentration of .05 or less is presumed not under the influence of alcohol.
The statutory presumptions do not apply to this case. Those presumptions apply only when a blood or breath test is administered pursuant to Code §§ 18.2-268.1 through -268.12. The statutory presumptions do not apply because the defendant refused to take either the blood or breath test and no test was given under the implied consent law. Code § 18.2-269. In Essex v. Commonwealth, 228 Va. 273, 286, 322 S.E.2d 216, 223 (1984), the trial court erred when it instructed on the statutory presumptions. In that case, a test performed at a hospital, but not pursuant to the implied consent law, did not raise the presumptions. "Code § 18.2-269 expressly provides that the presumptions it creates arise only when a blood-alcohol test is conducted 'in accordance with the provisions of § 18.2-268 [now § 18.2-268.1 et seq.].'" Id. at 286, 322 S.E.2d at 223 (footnote omitted).
As in Essex, the evidence in this case did not permit the giving of an instruction about the statutory presumptions. Even an instruction that accurately states the law may not be given if it is inapplicable to the facts of a given case. King v. Commonwealth, 2 Va. App. 708, 711, 347 S.E.2d 530, 531 (1986). The toxicologist's opinion about the defendant's blood alcohol content was not based on the results of a properly administered blood or breath test. Expert testimony is inadmissible "if it is founded on assumptions that have an insufficient factual basis." Keesee v. Donigan, 259 Va. 157, 161, 524 S.E.2d 645, 648 (2000) (citations omitted). The trial court did not err in refusing to admit the opinion or to give Instruction Z.
The defendant also contends the trial court erred in granting Instruction No. 4, which told the jury it could consider the defendant's prior inconsistent statements as substantive evidence. The Commonwealth introduced the statements the defendant made when stopped by the deputy to s
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