                               COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, McClanahan and Senior Judge Bumgardner
Argued at Alexandria, Virginia


JOSE A. ACUNA
                                                             MEMORANDUM OPINION* BY
v.     Record No. 1396-05-4                               JUDGE RUDOLPH BUMGARDNER, III
                                                                   JULY 11, 2006
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                                  John E. Kloch, Judge

                 Joseph D. King, Assistant Public Defender, for appellant.

                 Eugene Murphy, Senior Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Jose A. Acuna was convicted of driving while intoxicated -- the fourth violation within

ten years, Code § 18.2-266, driving as an habitual offender, Code § 46.2-357, and unreasonable

refusal to submit to a breath test, Code § 18.2-268.3. The defendant contends the trial court

erred by admitting his statement of refusal to take a breath test, by admitting records of two prior

driving under the influence convictions, and by admitting the Division of Motor Vehicles record

of his adjudication as an habitual offender. Finding no error, we affirm his convictions.

       At approximately 1:45 a.m., Officer Charles Young saw the defendant make an illegal

right turn at a red light. The officer followed and saw the defendant twice swerve into the right

lane. The officer activated his lights, but the defendant did not stop until the officer activated his

siren. As the officer approached, the defendant opened the car door, at which point the officer




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
detected a strong odor of alcohol. The defendant admitted he drank five beers and his license

was suspended for a prior driving under the influence conviction.

       The defendant refused to perform field sobriety tests or to take a preliminary oxisensor

breath test. The officer arrested the defendant and read him the form required by Code

§ 18.2-268.3(B) that explained the implied consent law and the consequences of refusal. The

parties stipulated that without giving any Miranda warnings, the officer asked the defendant to

submit to a breath test, and the defendant stated, “he was not going to take the test.” The officer

completed the form, checking the box that the defendant refused to take the test. He took the

defendant before a magistrate, who issued a warrant for unreasonably refusing to take the test.

       The defendant maintains his statement that he refused to take a breath test was a

compelled, incriminating response to custodial interrogation that violated the Fifth Amendment.

He argues that prior decisions holding to the contrary no longer control because an unreasonable

refusal now carries criminal penalties. Thus, he concludes, the content of his statement

constituted the crime of refusal.

       Police can compel an individual to provide blood or breath samples without violating the

Fifth Amendment. This is so because “the privilege [against self-incrimination] protects an

accused only from being compelled to testify against himself, or otherwise provide the State with

evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of

the analysis in question in this case did not involve compulsion to these ends.” Schmerber v.

California, 384 U.S. 757, 761 (1966).

       The Fifth Amendment does not bar the government from admitting at trial a suspect’s

statement that he or she refused to submit to a blood-alcohol test after being lawfully stopped on

suspicion of drunk driving. South Dakota v. Neville, 459 U.S. 553, 564 (1983). This is so

because “police inquiry of whether the suspect will take a blood-alcohol test is not an

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interrogation within the meaning of Miranda.” Id. at 564 n.15. Admission of the defendant’s

statement that he refused to submit to a breath test, “after a police officer has lawfully requested

it, is not an act coerced by the officer.” Id. at 564. The defendant’s statement of refusal was not

produced by custodial interrogation.

       The defendant maintains that the content of his statement constituted a crime. His

statement merely concerned intent about a future act. The act of refusal constituted the crime,

not the statement in response to the officer’s question of whether the defendant would take the

test. The imposition of criminal penalties for refusal to take a breath test does not transform the

refusal into testimonial evidence. Rowley v. Commonwealth, 48 Va. App. 181, 183, 629 S.E.2d

188, 189 (2006) (“‘The word “witness” in the constitutional text limits the relevant category of

compelled incriminating communications to those that are “testimonial” in character.’” (quoting

United States v. Hubbell, 530 U.S. 27, 34 (2000))).

       Even considering the criminal sanction of Code § 18.2-268.3, the defendant’s refusal to

submit to sobriety tests is not testimonial. “[T]he ‘fact of the refusal to perform tests that do not

themselves constitute communicative or testimonial evidence is equally non-communicative and

non-testimonial in nature.’” Id. at 186, 629 S.E.2d at 191 (quoting Farmer v. Commonwealth, 12

Va. App. 337, 341, 404 S.E.2d 371, 373 (1991)). Obtaining the defendant’s answer to whether

he would take the breath test did not violate the Fifth Amendment, and his statement of refusal

was admissible.

       The defendant contends the trial court erred in admitting court records of two prior

driving under the influence convictions. He maintains the records did not prove he was

represented by counsel and, thus, the convictions cannot be used to enhance his punishment.

       If a prior conviction resulted in incarceration, the Sixth Amendment requires that counsel

represented the defendant before the conviction can enhance punishment. “[A] previous

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misdemeanor conviction attended by incarceration is constitutionally offensive and may support

neither guilt nor enhanced punishment for a later offense, unless the accused either waived or

was represented by counsel in the earlier proceeding.” Nicely v. Commonwealth, 25 Va. App.

579, 583, 490 S.E.2d 281, 283 (1997); accord Samuels v. Commonwealth, 27 Va. App. 119, 123,

497 S.E.2d 873, 875 (1998).

       The Commonwealth introduced a copy of the record of a 1995 conviction that a general

district court clerk had certified. The warrant did not indicate whether the defendant had an

attorney, but attached to it was an appearance of counsel form noting the appearance of the

attorney on behalf of the defendant. The pleading was signed and dated by the attorney.

       The Commonwealth also introduced a certified copy of the defendant’s 1999 record of

conviction in general district court. Again, the warrant did not indicate whether the defendant

had an attorney, but attached to that warrant was a letter from the defendant’s attorney. It was on

the stationery of the attorney’s firm and noted the appearance for the defendant “who is charged

with Driving While Intoxicated and Habitual Offender.” The attorney signed the letter.

       When a prior conviction is collaterally attacked in a subsequent proceeding, “the

Commonwealth is entitled to a presumption of regularity which attends the prior conviction

because ‘every act of a court of competent jurisdiction shall be presumed to have been rightly

done, till the contrary appears.’” Nicely, 25 Va. App. at 584, 490 S.E.2d at 283 (quoting Parke

v. Raley, 506 U.S. 20, 30 (1992)); accord Samuels, 27 Va. App. at 123, 497 S.E.2d at 875. The

records of the convictions in the general district court reflected an appearance by attorneys on

behalf of the defendant. The Commonwealth enjoyed a presumption of constitutional regularity

that the attorneys appeared at trial for the defendant. The defendant offered no evidence that the

attorneys had not appeared.




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          Finally, the defendant challenges the admission of the record of the Division of Motor

Vehicles showing he had been adjudicated as an habitual offender. The defendant maintains that

the record is “akin to a testimonial affidavit by the Virginia Commissioner of Motor Vehicles”

and, thus, is “testimonial hearsay” prohibited under the Confrontation Clause as decided in

Crawford v. Washington, 541 U.S. 36 (2004).

          While this appeal was pending, this Court decided Michels v. Commonwealth, 47

Va. App. 461, 624 S.E.2d 675 (2006), holding that an official record from an out-of-state agency

was not testimonial hearsay. Michels reasoned that the record was simply a computer-generated

official record “prepared in a non-adversarial setting in which ‘the factors likely to cloud the

perception of an official engaged in the more traditional law enforcement functions of

observation and investigation of crime are simply not present.’” Id. at 465, 624 S.E.2d at 678

(quoting State v. Dedman, 102 P.3d 628, 635 (N.M. 2004)).

          Michels controls this case. The DMV document was an official record of an agency of

the Commonwealth. Those records are maintained as part of a governmental function, in a

non-adversarial setting, and “are a neutral repository of information . . . [which] do not resemble

ex parte examinations, ‘the principal evil at which the Confrontation Clause was directed.’” Id.

at 469, 624 S.E.2d at 679 (quoting Crawford, 541 U.S. at 50). The defendant’s driving record

was admissible pursuant to Code § 46.2-384, and its admission did not violate the Confrontation

Clause.

          We affirm the defendant’s convictions.
                                                                                          Affirmed.




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