                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Alston, McCullough and Senior Judge Annunziata
UNPUBLISHED


              Argued at Alexandria, Virginia


              RICHARD CALVIN HARRIS
                                                                           MEMORANDUM OPINION* BY
              v.     Record No. 1865-12-4                                JUDGE STEPHEN R. McCULLOUGH
                                                                                 MARCH 25, 2014
              COMMONWEALTH OF VIRGINIA


                                    FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                               Michael F. Devine, Judge

                               John A. Keats (Keats & Meleen, PLC, on brief), for appellant.

                               David M. Uberman, Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellee.


                     Following a jury trial, Richard Calvin Harris was convicted for driving under the

              influence of alcohol, after having been convicted twice before within a five-year period of the

              offense. He argues the evidence was insufficient to establish that his blood alcohol level was

              0.08 at the time he was driving. We find no error and affirm his conviction.

                                                        BACKGROUND

                     Around 2:30 a.m. on December 12, 2010, in the area of Route 50 and Muirfield Drive,

              Officer Chris Walczyk observed a car traveling approximately 60 miles per hour in an area

              where the posted speed limit is 45 miles per hour. He followed the vehicle. He noticed that

              appellant’s vehicle swerved out of the left side of the lane three times. In two of those instances,

              the vehicle stayed out of its lane for an “extended time.” The first two times, the tire came over

              his lane of travel “slightly,” about 12 inches. This lasted for about two or three seconds. The


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
third time, “the tire left the entire line [in]to the lane next to it and came back.” This swerving

occurred over a distance of approximately one mile and a half. Based on these observations,

Officer Walczyk stopped the vehicle. He testified that “[i]t took [appellant] a little while to

stop,” but that he did so with “no problems.” The location of the stop is about 20 to 30 minutes

from Washington, D.C., depending on the route taken.

       Appellant was the driver and the only person in the car. He had bloodshot eyes. Officer

Walczyk acknowledged that appellant had bloodshot eyes on the date of trial, but Walczyk stated

that “[h]is eyes are not nearly as bloodshot today as they were before.” The officer noticed an

odor of alcohol. This odor came from appellant rather than from his vehicle. He was uneasy on

his feet. It was undisputed that appellant suffers from a bad hip and that this affects his gait. The

officer testified, however, that although appellant walks with a limp, he was more unsteady on

his feet the night of the stop than he usually is due to his limp. Appellant did not have a valid

driver’s license. Appellant indicated he had consumed two glasses of champagne, but later said

instead that he had two glasses of beer. He stated that he was coming from a speaking

engagement in Washington, D.C. Officer Walczyk arrested appellant. Appellant stated that he

was lost and did not know where he was. Appellant called a number of witnesses who explained

that he suffers from dementia and sometimes forgets where he is.

       Due to the high demand for breath tests that morning, a line had formed, and the test did

not occur until 4:48 a.m. Appellant registered a 0.08 score on the breath alcohol test.

       Appellant offered the testimony of Richard J. McGarry as an expert in forensic

toxicology. McGarry testified that it is not possible to determine whether the alcohol

concentration at 4:48 a.m. was higher or lower two hours before. He stated that to determine the

breath alcohol concentration two hours before a test, one would need to know how the person




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had been drinking, when the person finished drinking, their sex, size, what they drank, the age of

the person, and whether the test-taker had been eating.

        In rebuttal, the Commonwealth called Alka Lohmann, the Program Manager for

Calibration and Training at the Breath Alcohol Laboratory operated by the Department of

Forensic Science. Lohmann explained that a driver with an intoxication level of 0.08 may show

certain outward signs of intoxication. Such a driver would suffer from deficits in tracking,

“which is their ability to keep their vehicle in its lane in relation to other vehicles.” In addition,

their reaction time would be decreased. She agreed with McGarry that the way alcohol is

consumed can affect how it is absorbed in the bloodstream. If someone drinks a large amount of

alcohol quickly, the body does not have time to absorb the alcohol into the bloodstream as it is

being consumed. In such a scenario, it could take up to an hour to reach the peak breath alcohol

concentration, or BAC. In contrast, in social drinking situations, where alcohol is consumed at a

slower pace, the peak BAC would typically be obtained within 30 minutes of the last sip of

alcohol. Lohmann also stated that an individual who weighs 165 pounds would not reach a 0.08

BAC after consuming two ordinary beers. She further agreed with McGarry concerning the

factors that influence the relationship between BAC at the time of the test and at the time of the

driving behavior: specifically, the time of the last drink in relation to the time of the test and the

time of the driving, as well as what kind of drink the person consumed.

        Lohmann explained that once someone has become “post-absorptive,” i.e., the body is

only getting rid of alcohol, the alcohol will be eliminated at a rate of 0.015 to 0.02 of their BAC

each hour. Because appellant was waiting for two hours to take the breath test and did not

consume alcohol in that time, he would have eliminated between 0.03 and 0.04 of his BAC

during this time. Finally, Lohmann stated that a test taken later in time by a post-absorptive

individual would be favorable to the subject of the breath test because such an individual would

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be “on their way down . . . in their BAC curve.” She conceded on cross-examination that there is

no way of telling what appellant’s BAC was at the time of the driving conduct.

                                             ANALYSIS

          On appeal, a reviewing court does not “‘ask itself whether it believes that the evidence at

the trial established guilt beyond a reasonable doubt.’” Jackson v. Virginia, 443 U.S. 307, 319

(1979) (emphasis in original, citation omitted). Instead, we ask only “‘whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.’” Maxwell v. Commonwealth,

275 Va. 437, 442, 657 S.E.2d 449, 502 (2008) (quoting Jackson, 443 U.S. at 319) (emphasis in

original). An appellate court is “not permitted to reweigh the evidence,” Nusbaum v. Berlin, 273

Va. 385, 408, 641 S.E.2d 494, 507 (2007), because appellate judges have no authority “to preside

de novo over a second trial,” Haskins v. Commonwealth, 44 Va. App. 1, 11, 602 S.E.2d 402, 407

(2004).

          Code § 18.2-266 provides that

                 [i]t shall be unlawful for any person to drive or operate any motor
                 vehicle . . . while such person has a blood alcohol concentration of
                 0.08 percent or more by weight by volume or 0.08 grams or more
                 per 210 liters of breath as indicated by a chemical test administered
                 as provided in this article . . . .

          We examined this statute in Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11

(1989), and concluded that

                 the inquiry under Code § 18.2-266(i) is not whether a driver was in
                 fact “under the influence of alcohol” to a degree that his ability to
                 drive safely was affected; rather, the issue is whether at the time he
                 was driving his blood alcohol concentration was at least [0.08%] as
                 measured by a subsequently administered chemical test.

Id. at 298, 381 S.E.2d at 15 (emphasis omitted). Code § 18.2-269(A)(3) further provides that

                 [i]f there was at that time 0.08 percent or more by weight by
                 volume of alcohol in the accused’s blood or 0.08 grams or more
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                per 210 liters of the accused’s breath, it shall be presumed that the
                accused was under the influence of alcohol intoxicants at the time
                of the alleged offense.

In Yap v. Commonwealth, 49 Va. App. 622, 643 S.E.2d 523 (2007), we held that this

“presumption” should be construed as a permissive inference.

        Appellant argues that the Commonwealth had to prove his BAC at the time of driving

and that it failed to do so. In particular, he points to Lohmann’s testimony that she could not

determine his BAC at the time of driving. He concludes that the Commonwealth relied solely on

the inference in Code § 18.2-269(A)(3) without “a shred” of evidence supporting it.

        We begin with the results of the test. Appellant produced a breath alcohol concentration

of 0.08 at 4:48 a.m. He was stopped at 2:30 a.m. The facts indicate appellant did not drink any

alcohol between 2:30 a.m. and 4:48 a.m. According to Officer Walczyk, at the time of day

appellant was driving, it would take 20 to 30 minutes to travel from the District of Columbia to

the location of the stop. There is no evidence appellant was drinking in his car. The car did not

smell of alcohol, although appellant did. During this approximately two-and-a-half-hour span

between the stop and the test, appellant did not consume any alcohol. According to the evidence,

his body was ridding itself of between 0.015 and 0.02 of alcohol concentration during each

passing hour.

        Furthermore, if appellant was drinking socially rather than binge drinking, as would

likely be the case if appellant was speaking at a social event, his peak BAC would be reached

sometime between the last sip of alcohol and one half hour afterwards. But even for persons

who had rapidly consumed alcohol, the peak BAC would be reached within one hour. Appellant

was tested well after an hour after his last sip of alcohol. The evidence, therefore, supports a

conclusion by the factfinder that his BAC was higher at the time he was driving than at the time

of testing.

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       Lohmann also testified to some of the behaviors that a driver at a 0.08 level of

impairment might exhibit. She explained that a driver who is intoxicated at that level would

likely display deficits in tracking his vehicle. Appellant swerved three times over a one-and-a-

half-mile stretch of road. She also noted that a driver with a 0.08 BAC would exhibit a delayed

reaction time. Officer Walczyk testified that, although appellant did stop his vehicle, “it took

him a little while to stop.” Finally, the jury also could deduce from all the evidence that his

excessive rate of speed was a symptom of his intoxication.

       Further confirming this conclusion is the fact that appellant’s breath smelled of alcohol,

he was unsteady on his feet, and he had bloodshot eyes, all commonsense indications of alcohol-

related impairment. True, appellant often had bloodshot eyes and his bad hip caused him to walk

with a limp. Nevertheless, the jury could credit Officer Walczyzk’s testimony that appellant’s

eyes were more bloodshot than usual on the night of his arrest and that his unsteadiness on his

feet was more pronounced than ordinary.

       “While no single piece of evidence may be sufficient, the combined force of many

concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind

irresistibly to a conclusion.” Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786

(2003) (quotations omitted). On these facts, the jury had evidence before it to enable it to draw

an inference that even if the Commonwealth could not pinpoint appellant’s precise BAC, the jury

could conclude that his actual BAC at the time he was driving would have been higher than the

0.08 level at which he tested several hours later.

                                          CONCLUSION

       We affirm the judgment of the trial court.

                                                                                          Affirmed.




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