Smith v. Commonwealth

78 Va.App. 371

891 S.E.2d 414

Bryan Temple SMITH v. COMMONWEALTH of Virginia

Record No. 0169-22-2

Court of Appeals of Virginia.

September 5, 2023

David C. Reinhardt ( Elliott B. Bender, Richmond; Reinhardt Law Firm, PLLC; Bender Law Group, PLLC, on briefs), for appellant.

Rebecca M. Garcia, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Raphael, White and Senior Judge Petty

OPINION BY JUDGE STUART A. RAPHAEL

Bryan Temple Smith challenges his convictions for driving with a revoked license while intoxicated and for driving while intoxicated (DWI), third offense within 10 years. Ten days after state troopers stopped Smith for driving with a missing tag light in violation of Code § 46.2-1003, an amendment took effect that prohibited traffic stops based on such violations and that barred the Commonwealth from introducing any evidence "obtained as the result of a stop in violation of" the amendment. 2020 Va. Acts Spec. Sess. I chs. 45, 51. We disagree with Smith that the amendment was retroactive. We also disagree with Smith that the trial court erred in admitting (or that the jury erred in relying on) a Department of Motor Vehicles transcript to evidence Smith's two prior DWI convictions. And we find no error in the trial court's decision to permit the Commonwealth's expert to testify about the effects of alcohol on the body to corroborate that what the troopers observed was, in fact, the behavior of an intoxicated driver. Accordingly, we affirm Smith's convictions.

BACKGROUND

On appeal, we recite the facts "in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court." Hammer v. Commonwealth , 74 Va. App. 225, 231, 867 S.E.2d 505 (2022) (quoting Commonwealth v. Cady , 300 Va. 325, 329, 863 S.E.2d 858 (2021) ). Doing so requires that we "discard" the defendant's evidence when it conflicts with the Commonwealth's evidence, "regard as true all the credible evidence favorable to the Commonwealth," and read "all fair inferences" in the Commonwealth's favor. Cady , 300 Va. at 329, 863 S.E.2d 858 (quoting Commonwealth v. Perkins , 295 Va. 323, 323-24, 812 S.E.2d 212 (2018) ).

On February 19, 2021, Virginia State Police Troopers Zachary Homlish and Robert Swift stopped a tan Ford Bronco, driven by Smith, after observing that the truck was missing a tag light. When asked for his license and registration, Smith responded that "he was not supposed to be driving" because "he was in rehab due to a previous [DWI] in Henrico." Homlish smelled the faint odor of alcohol, and Smith admitted to having consumed "a couple of beers."

Smith complied with the troopers’ request to perform field sobriety tests. When Smith was asked to follow an object with his eyes without moving his head, Homlish observed nystagmus, an "involuntary jerking of the eyes." Smith repeatedly moved his head during the test after being instructed not to. And Smith was unable to stand on one leg for longer than four seconds. Stumbling, he explained to the trooper, "I already told you I've been drinking." He later admitted to having drunk "six beers" since "lunchtime." The troopers arrested Smith and transported him to jail to have his blood drawn. When read the implied-consent form for the blood draw, Smith responded, "how do you expect a drunk person to understand all that?"

Smith was indicted for (1) driving with a revoked license while intoxicated, in violation of Code § 46.2-391(D)(2)(a)(ii), and (2) DWI, third offense within 10 years, in violation of Code §§ 18.2-266 and -270. Smith was not charged with operating a vehicle with a defective tag light.

At the time of Smith's arrest, Code § 46.2-1003 provided that it was "unlawful for any person to use or have as equipment on a motor vehicle operated on a highway any device or equipment ... which is defective or in unsafe condition." 2017 Va. Acts ch. 670 ( Code § 46.2-1003 ). Smith moved to suppress the Commonwealth's evidence, arguing that a 2020 amendment to Code § 46.2-1003 prohibited law-enforcement officers from stopping vehicles for defective equipment. See 2020 Va. Acts Spec. Sess. I chs. 45, 51 ( Code § 46.2-1003(C) ).

The prosecutor acknowledged at the suppression hearing that the officers who stopped Smith had been advised to be on the lookout for his vehicle based on a tip from a witness. The witness reported seeing the vehicle swerving; the driver then stopped to buy beer and drove off with his hazard lights on. Smith argued that suppression was warranted because the purpose of the 2020 law was to guard against "[p]retextual stops" based on minor traffic offenses. But the trial court denied Smith's motion, concluding that the amendment was not retroactive.

At trial, after the prosecution failed to prove that the blood draw was performed by a person qualified under Code § 18.2-268.5, ² the trial court refused to admit the certificate of analysis into evidence. Without the certificate of analysis, the Commonwealth sought to prove Smith's intoxication through the troopers’ testimony and the dash-camera footage of the traffic stop. In addition, over Smith's objection, the prosecution called Dr. Jon K. Dalgleish, Ph.D., as an expert on the effects of alcohol on a typical individual.

Dr. Dalgleish testified that a person with a blood-alcohol content (BAC) of 0.08 would experience "significant adverse effects in judgment," a slower processing speed, less fine-motor control, slower reaction times, and impaired balance. He also testified that a person with a BAC of 0.15 would have "more adverse effects in balance and coordination, slurring of speech, problems forming sentences, [and] problems maintaining an upright posture or stumbling." And the more alcohol in the system, he explained, the more pronounced the "horizontal gaze nystagmus" effect, an involuntary jerking of the eyes.

To prove that Smith had two prior DWI convictions, the Commonwealth introduced a DMV transcript showing that Smith was convicted in the Henrico County General District Court of (1) driving while intoxicated in May 2016, and (2) driving while intoxicated, second offense within 10 years, in June 2020. The Commonwealth also presented the June 2020 court order, signed by the judge, stating that Smith pleaded guilty to the DWI-second offense. The Commonwealth did not offer the court order reflecting the DWI-first conviction in 2016.

The troopers were permitted to testify that they reviewed the DMV transcript at the scene. Trooper Swift told the jury that Smith had two prior DWI convictions as shown in the DMV transcript; Swift admitted, however, that he never saw a copy of Smith's DWI-first conviction. The trial court denied Smith's motion to exclude the DMV transcript and denied his motion to strike the Commonwealth's evidence.

In Smith's case-in-chief, the trial court received into evidence a letter addressed "To Whom It May Concern," signed by a deputy clerk for the Henrico County General District Court. The prosecutor's office had given the letter to Smith's counsel in discovery. The letter identified Smith and the case number for the DWI-first conviction shown on the DMV transcript. The letter stated: "After conducting a search for the above referenced case, we are unable to locate it at this time." After Smith rested, the trial court denied his renewed motion to strike.

The jury convicted Smith of both charges, and the trial court sentenced him to ten years’ imprisonment with eight years and six months suspended. Smith noted a timely appeal.

ANALYSIS

Smith's five assignments of error can be grouped into three categories. We consider them in order.

A. Retroactivity (Assignment of Error 1)

Smith argues that the evidence against him should have been suppressed because the troopers’ stated reason for stopping him was for driving with a defective tag light in violation of Code § 46.2-1003. On November 9, 2020, three months before the stop, the Governor signed into law chapters 45 and 51 of the Acts of Assembly. 2020 Va. Acts Spec. Sess. I chs. 45, 51. A provision of that bill added subsection C to Code § 46.2-1003, barring a law-enforcement officer from stopping a person for driving a motor vehicle with defective vehicle equipment. Id. ( Code § 46.2-1003(C) ). The amendment also imposed a statutory exclusionary rule for evidence obtained through a violation of that requirement:

No evidence discovered or obtained as the result of a stop in violation of this subsection, including evidence discovered or obtained with the operator's consent, shall be admissible in any trial, hearing, or other proceeding.

Id. When Smith was stopped on February 19, 2021, however, the 2020 law had not yet taken effect. Without an emergency-enactment clause, the bill did not become law until March 1, 2021, "the first day of the fourth month following the month of adjournment of the special session." Va. Const. Art. IV, § 13 ; Code § 1-214(B).

Yet Smith claims that the amendment should be given retroactive effect. "Whether a statute should be applied retroactively is ... a question of law that an appellate court reviews de novo. " Street v. Commonwealth , 75 Va. App. 298, 304, 876 S.E.2d 202 (2022). "The ‘usual rule’ regarding a new statute is ‘that legislation is ... prospective’ only." Id. at 305, 876 S.E.2d 202 (alteration in original) (quoting Martin v. Hadix , 527 U.S. 343, 357, 119 S.Ct. 1998, 2006, 144 L.Ed.2d 347 (1999) ). "The retroactivity of statutes is disfavored," and ordinarily "[a] statute is retroactive only if the legislature includes an express provision or other clear language indicating that it applies retroactively." Id. (citing McCarthy v. Commonwealth , 73 Va. App. 630, 647, 864 S.E.2d 577 (2021) ). "[E]very reasonable doubt is resolved against a retroactive operation of a statute, and words of a statute ought not to have a [retroactive] operation unless they are so clear, strong[,] and imperative that no other meaning can...