Taylor v. Commonwealth

70 Va.App. 182

826 S.E.2d 332

Ryan TAYLOR

v.COMMONWEALTH of Virginia

Record No. 0719-18-2

Court of Appeals of Virginia, Richmond.

APRIL 16, 2019

Jaclyn Murphy Goad (Gordon, Dodson, Gordon & Rowlett, on brief), for appellant.

Alice Anne Lloyd, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Petty and Chafin

OPINION BY JUDGE WILLIAM G. PETTY

Ryan Taylor was convicted of driving under the influence, third offense, in violation of Code § 18.2-266. Before trial, Taylor filed a motion to suppress the results of a warrantless seizure of a sample of his blood, referred to in the trial court as the blood draw. The motion was denied, and Taylor was subsequently convicted. On appeal, Taylor first argues that the trial court erred in denying his motion to suppress the warrantless blood draw. Secondly, Taylor argues that there was insufficient evidence to convict him of driving under the influence, third offense. For the following reasons, we affirm.

BACKGROUND

We view the facts in the light most favorable to the prevailing party below, granting to it the benefit of any reasonable inferences; we review issues of law de novo . Hall v. Commonwealth, 55 Va. App. 451, 453, 686 S.E.2d 554 (2009).

Trooper William Boelt of the Virginia State Police was traveling southbound on Interstate 95 in Chesterfield County. The speed limit on that portion of Interstate 95 was 60 miles per hour, and the trooper was passed by a car traveling at 82 miles per hour. Trooper Boelt initiated a stop of the car; Taylor was the driver. Trooper Boelt noticed the smell of alcohol and marijuana coming from the car. Taylor admitted that he had been drinking and smoking marijuana "earlier." Trooper Boelt asked Taylor to step out of the vehicle and perform field sobriety tests. Taylor agreed and, as a result of his performance, was arrested for driving under the influence (DUI).

Because Taylor admitted to using both alcohol and marijuana, Trooper Boelt transported Taylor to the hospital for a blood draw. At the hospital, Trooper Boelt "read [Taylor] implied consent" from a card. Although the card was not admitted into evidence, Trooper Boelt agreed with defense counsel on cross-examination that he "informed [Taylor] that he could receive some sanction, some criminal sanction, if he did not submit to the blood draw." Taylor stated that he understood implied consent and based on that he agreed to allow a sample of his blood to be withdrawn.

After Taylor’s blood was drawn, it was transported to the Department of Forensic Science for analysis. The certificate of analysis issued after the examination of the sample reflected a blood alcohol content (BAC) of .128% by weight by volume. At the time of the offense, Taylor had previously been convicted and sentenced for two DUIs.

Taylor filed a motion to suppress the results of the blood sample, alleging that a search warrant was required to obtain the sample and that any consent he gave was obtained by unconstitutional coercion. The trial court denied that motion, and the case proceeded to trial, where the trial court found Taylor guilty of DUI, third offense.

ANALYSIS

1. Motion to Suppress

Taylor argues that the results of the warrantless blood draw should have been suppressed because the United States Supreme Court’s decision in Birchfield v. North Dakota, ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), prohibits warrantless blood draws incident to arrest, and Taylor did not voluntarily consent to the blood draw. We disagree.

When reviewing a denial of a motion to suppress evidence, an appellate court considers the evidence in the light most favorable to the Commonwealth and "will accord the Commonwealth the benefit of all reasonable inferences fairly deducible from that evidence." Sidney v. Commonwealth, 280 Va. 517, 520, 702 S.E.2d 124 (2010). The defendant has the burden of showing that even when the evidence is reviewed in that light, denying the motion to suppress was reversible error. Id. at 522, 702 S.E.2d 124. We review de novo the trial court’s application of the law to the particular facts of the case. Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910 (2008).

At the time of Taylor’s arrest in this case, September 8, 2015, the law in Virginia was that

[a]ny person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway ... in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of § 18.2-266 [.]

Code § 18.2-268.2. Unreasonable refusal to submit to a blood or breath test under Code § 18.2-268.2 resulted in a violation of Code § 18.2-268.3. A first offense for violation of Code § 18.2-268.3 resulted in a civil penalty of a one-year license suspension, but subsequent offenses resulted in conviction of a criminal offense and license suspension. Code § 18.2-268.3. The Virginia Supreme Court has consistently held that this statute passes constitutional muster. See Shin v. Commonwealth, 294 Va. 517, 529-30, 808 S.E.2d 401 (2017) ; Walton v. City of Roanoke, 204 Va. 678, 683-84, 133 S.E.2d 315 (1963).

In Birchfield, the United States Supreme Court held, among other things, that "motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense."¹ ––– U.S. at ––––, 136 S.Ct. at 2186. Accordingly, warrantless blood draws incident to arrest under an implied consent statute, which authorize criminal penalties upon refusal, violated the Fourth Amendment when there is no other exception to the warrant requirement such as exigency. Id. In response to the Court’s ruling in Birchfield, the General Assembly of Virginia reenacted Code § 18.2-268.3 on March 16, 2017 to remove criminal penalties for unreasonable refusal.

On appeal in this case, Taylor argues that Birchfield required the trial court to grant his motion to suppress. In response, the Commonwealth argues Trooper Boelt acted in good faith reliance on well-established precedent in obtaining a blood sample from Taylor. As such, the exclusionary rule does not apply. We agree with the Commonwealth.

This Court has "consistently held that when a law enforcement officer relies in good faith upon the constitutional standards in existence at that time , the exclusionary rule will not be implemented ex post facto ." Reed v. Commonwealth, 69 Va. App. 332, 340, 819 S.E.2d 446 (2018). It is well-settled that "[a]n officer who conducts a search in reliance on binding appellate precedent does no more than ‘ac[t] as a reasonable officer would and should act’ under the circumstances." Davis v. United States, 564 U.S. 229, 241, 131 S.Ct. 2419, 2429, 180 L.Ed.2d 285 (2011) (alteration in original) (quoting United States v. Leon, 468 U.S. 897, 920, 104 S.Ct. 3405, 3419, 82 L.Ed.2d 677 (1984) ). "The deterrent effect of exclusion in such a case can only be to discourage the officer from ‘do[ing] his duty.’ " Id. (alteration in original) (quoting Leon, 468 U.S. at 920, 104 S.Ct. at 3419 ). See also United States v. Peltier, 422 U.S. 531, 537, 95 S.Ct. 2313, 2317, 45 L.Ed.2d 374 (1975) ("[I]f the law enforcement officers reasonably believed in good faith that evidence they had seized was admissible at trial, the imperative of judicial integrity is not offended by the introduction into evidence of that material even if decisions subsequent to the search or seizure have broadened the exclusionary rule to encompass evidence seized in that manner." (internal quotation marks omitted)).

The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.

Id. at 538-39, 95 S.Ct. at 2318 (quoting Michigan v. Tucker, 417 U.S. 433, 447, 94 S.Ct. 2357, 2365, 41 L.Ed.2d 182 (1974) ). "[T]he inquiry must be focused on the ‘flagrancy of the police misconduct’ at issue" and employ the "last resort" remedy of exclusion only when necessary "to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." Collins v. Commonwealth, ––– Va. ––––, ––––, 824 S.E.2d 485 (2019) (first quoting Davis v. United States, 564 U.S. 229, 238, 131 S.Ct. 2419, 2427, 180 L.Ed.2d 285 (2011) (citation omitted); then quoting Herring v. United States, 555 U.S. 135, 140, 144, 129 S.Ct. 695, 699–700, 702, 172 L.Ed.2d 496 (2009) (citation omitted)). See also Heien v. North Carolina, 574 U.S. 54, 135 S.Ct. 530, 540, 190 L.Ed.2d 475 (2014) (holding that officer’s reasonable mistake of law did not require suppression of evidence).

At the time Trooper Boelt arrested Taylor, the law in Virginia was that Taylor had, by driving on the highway, impliedly consented to provide a blood or breath sample after being arrested for driving while intoxicated.² If he refused to honor that implied consent, he faced a criminal conviction for the refusal because he had two prior DUI convictions. While it can be argued that Birchfield invalidated implied consent statutes that threaten criminal sanctions for refusing to provide a blood sample, Birchfield did not conclude that its holding should be applied retroactively. Therefore, Trooper Boelt was following the law as it existed at the time of the arrest. And there is no evidence in the record that Trooper Boelt engaged in willful or negligent conduct in obtaining the blood sample. See Peltier, 422...