Fitzgerald v. Commonwealth

1

JEFFREY EARL FITZGERALD v. COMMONWEALTH OF VIRGINIA

No. 0331-23-3

Court of Appeals of Virginia

January 23, 2024

FROM THE CIRCUIT COURT OF BOTETOURT COUNTY Joel R. Branscom, Judge

Melvin E. Williams (Meghan A. Strickler; Williams & Strickler PLC, on brief), for appellant.

Rachel A. Glines, Assistant Attorney General (Jason S. Miyares Attorney General, on brief), for appellee.

Present: Judges Huff, Malveaux and Chaney Argued by videoconference

MEMORANDUM OPINION ^[*]

MARY BENNETT MALVEAUX, JUDGE

Jeffrey Earl Fitzgerald ("appellant") appeals his conviction in a bench trial for driving under the influence of alcohol, in violation of Code § 18.2-266. He argues that police lacked probable cause to arrest him, the trial court erred in relying upon the results of a retrograde extrapolation test, and the evidence was insufficient to support his conviction. For the following reasons, we affirm.

I. BACKGROUND

"On appeal, we review the evidence in the 'light most favorable' to the Commonwealth, the prevailing party in the trial court." Myers v. Commonwealth, 299 Va. 671, 674 (2021) (quoting Vasquez v. Commonwealth, 291 Va. 232, 236 (2016)). "Further, we 'discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.'" Barnett v. Commonwealth, 73 Va.App. 111, 115 (2021) (quoting Yerling v. Commonwealth, 71 Va.App. 527, 530 (2020)).

On February 24, 2021, Trooper Boyette of the Virginia State Police arrived at the scene of a three-vehicle crash. The accident had occurred at about 6:00 p.m., when appellant turned left on a flashing yellow light and caused a collision with two other vehicles that were traveling through an intersection. Boyette testified that the nature of the accident required him to "get[] vehicles out of the road," ensure that multiple injured parties were transported from the scene, and "get[] the roadways open . . . [and] the necessary personnel there." Three of the injured parties had to be "cut[] . . . out of the[ir] vehicle" by emergency personnel before they could be taken to the hospital.

When Boyette first encountered appellant, Boyette was wearing a mask and did not notice any odor of alcohol.^[1] He did, however, ask appellant if he had consumed any alcohol, and appellant denied having done so. But sometime later, when Boyette removed his mask and interviewed appellant a second time, he smelled the odor of an alcoholic beverage coming from appellant and saw that appellant's eyes were "somewhat glassy." Boyette asked appellant a second time whether he had consumed any alcohol, and appellant admitted drinking nine ounces of beer earlier that day at approximately 3:00 p.m. Appellant denied drinking any alcohol after the crash.

Boyette then conducted field sobriety tests with appellant. When performing the walk-and-turn test, appellant could not place his feet into the proper starting position, swayed, and lost his balance several times. During the one-legged-stand test, appellant lost his balance after 11 seconds and failed to complete the test. A police video recording of appellant's field sobriety tests was played at trial and entered into evidence.

Following the field sobriety tests, appellant consented to take a preliminary breath test. His result indicated a blood alcohol concentration ("BAC") of 0.06.^[2] Boyette arrested appellant for driving under the influence. At the jail, appellant provided an Intoxilyzer breath sample at 9:41 p.m. that indicated a BAC of 0.05 grams per 210 liters of breath.

Dr. Trista Wright, an expert forensic toxicologist with the Virginia Department of Forensic Science, testified at trial. She conducted a retrograde extrapolation of appellant's BAC at the time of the collision, based on the premise that appellant consumed no alcohol after the crash and had a BAC of 0.05 grams per 210 liters of breath at 9:41 p.m. Wright used a standard elimination rate to conclude and opine that at the time of the crash, appellant had a BAC of between 0.085 and 0.12. Wright agreed that her analysis was incompatible with appellant's claim that he had only consumed nine ounces of beer at about 3:00 p.m., because that amount of alcohol would have resulted in a significantly lower BAC by 9:41 p.m.

Appellant objected that Boyette had lacked probable cause to arrest him. The trial court overruled the objection, stating, "I think a positive [preliminary breath] test, admission of drinking and some of the field [sobriety] tests are sufficient for probable cause."

At the close of the Commonwealth's case-in-chief, appellant presented a combined argument on a motion to strike and renewed motion to strike, and in closing. He contended that under Code § 18.2-269, his BAC of 0.05 grams per 210 liters of breath created a presumption that he was not under the influence of alcohol at the time of the collision. Appellant also argued that Wright had failed to state that her expert opinion was made to a "reasonable degree" of certainty and that her reverse extrapolation of BAC was insufficiently reliable. Further, appellant contended, there was otherwise insufficient evidence in Boyette's investigation to prove that appellant had been driving under the influence. Accordingly, appellant argued, there was "no evidence that his intoxication caused the accident. The accident could have been caused just as easily by his inattention, misgauging, misestimating, the ability to go through the intersection."^[3]

In convicting appellant, the trial court acknowledged that appellant's 0.05 BAC result at 9:41 p.m. created a rebuttable presumption against intoxication at the time of the accident. See Code § 18.2-269(A)(1). It found, however, that the Commonwealth had rebutted this presumption through both Wright's testimony and the other evidence before it. After discussing appellant's possible BAC range at the time of the accident, including Wright's opinion about appellant's retrograde extrapolated BAC, the court stated

[b]ut then I look at the field [sobriety] tests . . . and the definition of what under the influence means and that means having enough alcohol to affect your ability to move, talk, those type of things. . . . [T]he heel to toe test to me and what I saw on the, the screen, is somebody who . . . had enough alcohol in his system to affect his motor skills. . . . [D]oes he have enough in his system? I know he's got alcohol in his system. . . . [A]nd now I know he's staggering some when he's just doing a simple [heel] to toe test. So I do find the evidence sufficient beyond a reasonable doubt to find him guilty of driving under the influence.

This appeal followed.

II. ANALYSIS

A. Probable Cause

Appellant argues that Boyette lacked probable cause to arrest him for driving under the influence. We disagree.

"The question of whether a . . . seizure violated the Fourth Amendment is 'a mixed question of law and fact that we review de novo' on appeal." Hairston v. Commonwealth, 67 Va.App. 552, 560 (2017) (quoting Harris v. Commonwealth, 276 Va. 689, 694 (2008)). "An appellate court independently reviews the trial court's application of relevant legal principles such as whether . . . probable cause supported a seizure. In doing so, however, the Court is 'bound by the trial court's factual findings unless those findings are plainly wrong or unsupported by the evidence.'" Id. at 560-61 (citation omitted) (quoting Malbrough v. Commonwealth, 275 Va. 163, 168 (2008)). Additionally, "we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." Id. at 561 (quoting McGee v. Commonwealth, 25 Va.App. 193, 198 (1997) (en banc)).

"[P]robable cause to arrest exists where the 'facts and circumstances within the officer's knowledge . . . are sufficient to warrant a prudent person . . . in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.'" Id. at 564 (second and third alterations in original) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). "Probable cause has been defined as 'a fluid concept,' that 'deals with probabilities and depends on the totality of the circumstances.'" Keene v. Commonwealth, 74 Va.App. 547, 555 (2022) (first quoting Illinois v. Gates, 462 U.S. 213, 232 (1983); and then quoting Maryland v. Pringle, 540 U.S. 366, 371 (2003)). Accordingly, "[t]here is no formula for determining probable cause; it is a 'flexible, common-sense standard.'" Id. (quoting Slayton v. Commonwealth, 41 Va.App. 101, 106 (2003)). "Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the [probable-cause] decision." Doscoli v. Commonwealth, 66 Va.App. 419, 427 (2016) (alteration in original) (quoting Pringle, 540 U.S. at 371). "Therefore, '[u]nlike a factfinder at trial, "reasonable law officers need not resolve every doubt about a suspect's guilt before probable cause is established."'" Id. (quoting Joyce v. Commonwealth, 56 Va.App. 646, 660 (2010)). Probable cause is judged by "examin[ing] the events leading up to the arrest[] and then decid[ing] 'whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to' probable cause." District of Columbia v. Wesby, 583 U.S. 48, 56-57 (2018) (quoting Pringle, 540 U.S. at 371); see also Mason v. Commonwealth, 291 Va. 362, 369 (2016) (noting that although probable cause must be based on "[a]rticulable" facts, the officer need not articulate those facts expressly or subjectively rely on them as the basis for his actions).

Through his investigation, Boyette...