                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Clements and Beales
Argued at Richmond, Virginia


BILLIE DENISE BROWN
                                                             MEMORANDUM OPINION * BY
v.     Record No. 0305-07-2                                  JUDGE RANDOLPH A. BEALES
                                                                    APRIL 8, 2008
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF HENRICO COUNTY
                                Catherine C. Hammond, Judge

                 W. Edward Riley, IV (Boone, Beale, Cosby & Long, on brief), for
                 appellant.

                 Karen Misbach, Assistant Attorney General (Robert F. McDonnell,
                 Attorney General, on brief), for appellee.


       Billie Denise Brown (appellant) challenges the sufficiency of the evidence to sustain her

conviction for driving under the influence of alcohol (DUI), second offense within ten years, in

violation of Code § 18.2-266. Appellant also asserts “the Commonwealth failed to provide to

[her] possible exculpatory evidence through a blood or breath test when it charged her with

refusal” to submit to a breath alcohol test. For the reasons that follow, we affirm.

                                          I. BACKGROUND

       At approximately 10:00 p.m. on May 17, 2006, Officer Jeremiah Cooper of the Henrico

County Police Department stopped appellant, a fifty-five-year-old female, for speeding on

Parham Road. According to Cooper, appellant was traveling sixty-three miles per hour in a

forty-five mile-per-hour zone. Upon approaching appellant, Cooper noticed she had “a strong

odor of alcohol and red, watery eyes.” Cooper said that it took appellant about three minutes to

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
find her driver’s license, and, during that time, she repeatedly argued that he did not have a

reason to stop her. Cooper asked appellant if she had consumed any alcohol, and appellant told

him that she drank approximately one glass of wine between 7:00 p.m. and 9:00 p.m.

        Cooper asked appellant to take a field sobriety test, to which she consented. First,

Cooper had appellant perform a walk-and-turn test, which she chose to do barefoot. He recalled

that appellant “was unable to keep her balance. She was using her arms for balance. She began

the test too soon. She would not listen to my instructions. I had to explain to her the test three

different times.” Cooper described appellant’s walk during the test as “staggered.” Next,

Cooper instructed appellant how to perform the one-legged stand. Cooper said, “She raised her

right foot. She was swaying while balancing, using her arms to balance, and hopping around.

She then began to count, as instructed, one 1,000, two 1,000, but then she sped up her count and

began counting normally, as of one, two, three, four, five, six.”

        Cooper, thereafter, arrested appellant for driving under the influence of alcohol. 1 After

transporting appellant to the Warrant Services Unit, Cooper read her the implied consent form.

Appellant, at that point, said she wanted to speak to her lawyer before taking the breath test.

According to Cooper, appellant reiterated that he did not have any reason to stop her, cursed him,

and said “that she hoped [Cooper] enjoyed ruining peoples lives.” Cooper then went before the

magistrate and signed the implied consent form, which noted appellant’s refusal to take a breath

test.

        Appellant testified that she had attended a birthday party at Maggiano’s restaurant in

western Henrico County on the evening in question. After having dinner and, by her own

admission, one and one-quarter glasses of wine, she left the restaurant at approximately

9:30 p.m. She explained that in general she is a fast person in the way she gets things done and


        1
            Cooper also cited appellant for speeding.
                                                  -2-
supposed she rushed through the field sobriety tests so that she could go home and take care of

an uncomfortable and embarrassing “female problem,” as described in the record by appellant’s

trial counsel. Appellant said that she thought she should talk to her lawyer before taking the

breath test since she had a prior DUI. She denied refusing to take the test.

       Appellant produced three witnesses who testified that she did not have alcohol on her

breath when she left the restaurant, that her ability to walk was not impaired, that her eyes were

clear, and that her ability to talk was not impaired. One witness, Dr. Tompkins, said that

appellant’s movements are generally fast and described her as animated. Tompkins confirmed

that appellant is usually a friendly, nice person. The Commonwealth stipulated that seven other

witnesses would appear and testify that they dined with appellant at Maggiano’s on the night in

question, that there was no alcohol on appellant’s breath as she left the restaurant at 9:30 to

9:35 p.m., that wine was served at approximately 7:00 p.m., that appellant had no problem

talking or walking when she left the restaurant, and that she did not appear intoxicated.

       Dr. Irma Adams, an expert in pharmacology and toxicology and former Breath Alcohol

Section Chief for the Department of Forensic Science, testified that, based upon appellant’s size

and the seven to eight ounces she admitted drinking, appellant’s BAC would have been between

.01% and .04%. Adams opined that a person’s ability to operate a vehicle is impaired when that

person’s BAC reaches “.05, .06.”

       The trial court found appellant not guilty of refusal to submit to the breath test. The trial

court, however, found her guilty of speeding and driving under the influence, noting

               the objective facts, without anybody’s opinion of whether she was
               or was not intoxicated, show that first of all, she was driving her
               car too fast. It’s admitted that she was drinking. It’s very hard to
               quantify what the amount was, but we do know that she was
               unable to do the Walk-and-Turn, she was unable to do the One-Leg
               Stand. That’s why we have the tests.



                                                -3-
                        And I think that’s enough right there, so I won’t go into the
                other, the other evidence, which I think there is additional evidence
                to support a conviction.

(Emphasis added.) This appeal followed.

                                             II. ANALYSIS

                                  A. SUFFICIENCY OF THE EVIDENCE

        When considering the sufficiency of the evidence on appeal, “a reviewing court does not

‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable

doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003)

(quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Viewing the evidence in the light

most favorable to the Commonwealth, as we must since it was the prevailing party in the trial

court,” Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), “[w]e must

instead ask whether ‘any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.’” Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting

Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003)). “This familiar

standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Jackson, 443 U.S. at 319.

        Code § 18.2-266 reads, in relevant part,

                It shall be unlawful for any person to drive or operate any motor
                vehicle, engine or train (i) 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, (ii) while such person
                is under the influence of alcohol . . . .

In the case at bar, because the Commonwealth did not have a breath or blood test to submit into

evidence, appellant was prosecuted under subsection (ii) of the statute. Code § 18.2-266(ii)

prohibits driving “while such person is under the influence of alcohol.” “That degree of

                                                  -4-
intoxication, or being ‘under the influence of alcohol,’ is established when any person has

consumed enough alcoholic beverages to ‘so affect his manner, disposition, speech, muscular

movement, general appearance or behavior, as to be apparent to observation.’” Thurston v.

Lynchburg, 15 Va. App. 475, 483, 424 S.E.2d 701, 705 (1992) (quoting Gardner v.

Commonwealth, 195 Va. 945, 954, 81 S.E.2d 614, 619 (1954)).

        Here, appellant admitted drinking alcohol between her arrival at Maggiano’s at 7:00 p.m.

and the time she left at 9:30 p.m. After stopping appellant for speeding eighteen miles over the

posted speed limit, Officer Cooper observed that appellant had watery eyes and smelled of

alcohol. Appellant failed to perform either of her field sobriety tests correctly. Specifically,

Cooper stated that appellant staggered while performing the walk-and-turn test and swayed while

holding her arms out to balance herself while performing the one-legged stand test. In addition,

appellant, whom her friend, Dr. Tompkins, confirmed was usually friendly and nice, was

persistently confrontational throughout her encounter with Officer Cooper.

        Although the Commonwealth stipulated that several of appellant’s dining companions

would testify that she did not appear intoxicated when she left the restaurant, the trial court

clearly placed more weight upon “the objective facts” in the record, which consisted primarily of

Officer Cooper’s observations of appellant at the scene and appellant’s admitted consumption of

alcohol. Such a determination rested within the sole province of the trial court as the fact finder

in this case, and we will not disturb on appeal its evaluation of the witnesses’ credibility. See

Burket v. Commonwealth, 248 Va. 596, 614-15, 450 S.E.2d 124, 134 (1994) (“The trial court, as

the finder of fact, is entitled to weigh the evidence, to observe the demeanor of the witnesses, and

to assess their credibility.”).

        Based upon the evidence in this record, a rational trier of fact could have found that

appellant was operating her vehicle while under the influence of alcohol. Stated another way, we

                                                -5-
cannot say that no rational trier of fact could have concluded -- given appellant’s rate of speed,

her admission to drinking alcohol, her “red, watery eyes,” the odor of alcohol emanating from

her person, her performance on the field sobriety tests, and her confrontational behavior -- that

appellant had consumed enough alcohol to “affect [her] manner, disposition, speech, muscular

movement, general appearance or behavior.” Thurston, 15 Va. App. at 483, 424 S.E.2d at 705.

Accordingly, we hold that the trial court did not err in finding appellant guilty of driving under

the influence of alcohol, second offense within ten years, in violation of Code § 18.2-266.

                     B. THE DENIAL OF POTENTIALLY EXCULPATORY EVIDENCE

       Appellant argues that the Commonwealth denied her the opportunity for exculpatory

evidence by failing to administer a breath test. In essence, appellant argues that Code

§ 18.2-268.2 gives an accused the statutory right to receive a breath test. 2

       This Court’s recent decision in Brown-Fitzgerald v. Commonwealth, 51 Va. App. 232,

656 S.E.2d 422 (2008), refutes appellant’s contention. There, we held that, “[a]lthough the

language of [Code § 18.2-268.2] mandates that the arrestee ‘shall submit’ to a breath test, it does

not impose any obligation upon the police officer to offer a breath test.” Id. at 236, 656 S.E.2d at

424. Instead, “[t]he only obligation placed upon the police officer by [Code § 18.2-268.2] is to

provide a blood test if the officer chooses to compel submission to chemical testing and the

breath test is unavailable or the arrestee is physically unable to submit to the breath test.” Id.




       2
           Code § 18.2-268.2(B) reads, in pertinent part:

                 Any person so arrested for a violation of clause (i) or (ii) of
                 § 18.2-266 or both, § 18.2-266.1 or subsection B of § 18.2-272 or
                 of a similar ordinance shall submit to a breath test. If the breath
                 test is unavailable or the person is physically unable to submit to
                 the breath test, a blood test shall be given.


                                                 -6-
Accordingly, appellant’s claim that the Commonwealth failed to provide her with potentially

exculpatory evidence in the form of a breath test lacks merit.

                                         III. CONCLUSION

       For the foregoing reasons, we affirm appellant’s conviction.

                                                                                      Affirmed.




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