                    COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Elder and
          Senior Judge Overton
Argued at Alexandria, Virginia


CARVIN CALHOUN
                                                 OPINION BY
v.   Record No. 2006-00-4                  JUDGE NELSON T. OVERTON
                                                MAY 22, 2001
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                     Jonathan C. Thacher, Judge

            Michael H. Cantrell for appellant.

            Leah A. Darron, Assistant Attorney General
            (Mark L. Earley, Attorney General, on brief),
            for appellee.


     Carvin Calhoun, appellant, appeals his felony conviction of

driving while intoxicated, third offense within ten years, in

violation of Code §§ 18.2-266 and 18.2-270.      The issue on appeal

is whether the trial court erred by allowing the Commonwealth to

cross-examine appellant about his refusal to take the required

breath or blood test.    Finding that evidence of appellant's

refusal to take the required test constituted improper rebuttal

of appellant's testimony, the judgment of the trial court is

reversed.

                                FACTS

     Appellant stopped at a sobriety checkpoint in Fairfax

County.    Officer D.C. Decoster approached appellant's vehicle
and smelled alcohol emanating from appellant.    Decoster noticed

appellant had bloodshot eyes, "disarranged" clothing, and

slurred speech.   Appellant fumbled with his wallet and could not

produce a driver's license.    Appellant did not respond to

Decoster's inquiries about where appellant had been and whether

he had consumed any alcohol.    Decoster asked appellant to exit

his vehicle and perform some field sobriety tests.   Appellant

failed to perform the tests to Decoster's satisfaction.

Decoster arrested appellant for driving while intoxicated, and

appellant refused to submit to a blood or breath test.

     Prior to trial, appellant made a motion in limine to

prevent the Commonwealth from presenting evidence of appellant's

refusal to take the blood or breath test.   The trial court

granted the motion and limited the Commonwealth's use of

evidence of appellant's refusal to "rebuttal."

     At trial, appellant testified in his own behalf.     Appellant

stated he had consumed one-half a glass of wine with dinner that

evening, eight hours before the stop.    The trial court then

allowed the Commonwealth to cross-examine appellant about his

refusal to take the blood or breath test, stating that

appellant's assertion that he was not intoxicated "opened the

door" to evidence of his refusal.

                              ANALYSIS

          "As a general rule, a litigant is entitled
          to introduce all competent, material, and
          relevant evidence tending to prove or

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           disprove any material issue raised, unless
           the evidence violates a specific rule of
           admissibility." "Evidence is admissible if
           it is both relevant and material," and it is
           inadmissible if it fails to satisfy either
           of these criteria. "Evidence is relevant if
           it has any logical tendency, however slight,
           to establish a fact at issue in the case."
           "Evidence is material if it relates to a
           matter properly at issue."

Peeples v. Commonwealth, 28 Va. App. 360, 365, 504 S.E.2d 870,

873 (1998) (citations omitted).

     Code § 18.2-268.10 addresses the admissibility of evidence

pertaining to a person's refusal to take a blood or breath test:

           The failure of an accused to permit a blood
           or breath sample to be taken to determine
           the alcohol or drug content of his blood is
           not evidence and shall not be subject to
           comment by the Commonwealth at the trial of
           the case, except in rebuttal; nor shall the
           fact that a blood or breath test had been
           offered the accused be evidence or the
           subject of comment by the Commonwealth,
           except in rebuttal.

This section makes such evidence immaterial, or not a proper

issue, in a driving under the influence prosecution, except in

the case where a defendant raises the issue.   In such an

instance, evidence of a refusal to take a test becomes material

for rebuttal.   However, evidence of the refusal must be relevant

to the material issue raised by the defendant's evidence.

     "[A] request to take the [mandatory] breath test . . .

proves nothing about appellant's guilt or innocence."     Hammond

v. Commonwealth, 17 Va. App. 565, 568, 439 S.E.2d 877, 879

(1994).   It follows that the refusal to take the test also has

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no probative value as to guilt or innocence.    "Therefore, the

evidence is not relevant[,]" id., or material, except in

rebuttal when the defendant raises an issue pertaining to the

offer of, or failure to take, the test.

     Here, appellant stated he consumed one-half a glass of wine

eight hours before the stop.   He also testified he was not

intoxicated.   Therefore, the only material issue raised by

appellant was the amount of alcohol consumed and whether he was

intoxicated.

     Rebuttal evidence is "[e]vidence offered to disprove or

contradict the evidence presented by an opposing party."

Black's Law Dictionary 579 (7th ed. 1999).     Evidence that

appellant refused to take the test does not disprove or

contradict his testimony that he was not intoxicated.    Nor does

such evidence prove he consumed a greater amount of alcohol.

Accordingly, evidence of appellant's refusal to take the test

was not relevant to the material issue raised by his testimony.

Only evidence that bears on the facts asserted in appellant's

testimony would rebut that testimony.   Such evidence might have

included evidence of his performance on field sobriety tests and

the officer's common observations of appellant's speech and

physical appearance.   The refusal itself, however, did not rebut

or disprove appellant's testimony, and, therefore, was not

admissible.    Merely testifying in one's own behalf does not



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"open the door" to evidence of a refusal to take the mandatory

breath or blood test.

     For the above stated reasons, the judgment of the trial

court is reversed and remanded for further proceedings should

the Commonwealth be so advised.

                                        Reversed and remanded.




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