                        COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Humphreys
Argued at Chesapeake, Virginia


JACK FOSTER
                                            MEMORANDUM OPINION * BY
v.   Record No. 1964-00-1                 JUDGE ROBERT J. HUMPHREYS
                                                 June 26, 2001
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
                       Rodham T. Delk, Jr., Judge

             S. Jane Chittom, Appellate Defender (Public
             Defender Commission, on brief), for
             appellant.

             Kathleen B. Martin, Assistant Attorney
             General (Mark L. Earley, Attorney General, on
             brief), for appellee.


     Jack Foster appeals his convictions, after a bench trial, for

driving under the influence of alcohol and/or drugs (second

offense), and of driving after having been declared an habitual

offender with an underlying conviction for driving under the

influence.    Foster contends that the trial court erred in

admitting evidence concerning his refusal to take a breathalyzer

test, and in finding the evidence sufficient as a matter of law to

support his conviction for driving under the influence of alcohol

and/or drugs.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     Because this opinion has no precedential value and because

the parties are fully conversant with the facts, we do not recite

them in detail here.

     During trial, Foster objected to the Commonwealth's

introduction of, as well as comment on, the evidence concerning

Foster's drinking water from the sink after being advised that it

would interfere with the breathalyzer test and the evidence that

Foster had stated that he had already taken the breathalyzer test

when in fact, he had not.   The Commonwealth stated that the

evidence was being offered for the sole purpose of demonstrating

Foster's "comprehension of what's going on, and I submit in

arguing that it would go to whether or not he was under the

influence and whether [sic] because of his other actions at the

time the test was taken and subsequent thereto."   The trial court

took the objection under advisement and then overruled the

objection finding the following:

          . . . in the first paragraph of that same
          section [(18.2-268.10)], "The Court shall,
          regardless of the result of any blood or
          breath tests, consider other relevant
          admissible evidence of the condition of the
          accused."

          The relevant evidence as to the intoxication
          is not only physical evidence with regard to
          such as we've heard in this case it may also
          be in the mind of the Court evidence as to
          the accused's reasoning, thought process as
          expressed in statements and the like.

          *      *      *       *      *      *       *



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          I am not going to consider the fact of any
          refusal or not by this defendant as evidence
          of anything under this section other than as
          a circumstance which might be relevant to
          his thought processes and conduct that might
          be relevant as to his condition. But I'm
          not going to, the fact that he may accept,
          or reject, or refuse, that's simply not
          evidence as to the ultimate issue accepted
          as a factor among other factors as to his
          condition.

     The trial court ultimately found Foster guilty of the

charges, finding:

          I'm not going to consider the fact that he
          did not take the field sobriety tests, or
          that he did not take a scientific breath
          test blood test [sic] as evidence of guilt.
          There are circumstances, however, that can
          be considered in other context.

           *        *    *      *      *      *      *

          The defendant has slurred speech. He was
          incoherent at times in his speech. He was
          unsteady on his feet, both standing and
          walking. That is mitigated by -- the Court
          accepts that as the defendant's
          disabilities, and that is a factor to be
          considered.

           *        *    *      *      *      *      *

          However, there is clear evidence of odor of
          alcohol upon the defendant's breath. There
          is clear evidence that the defendant had
          bloodshot, watery eyes. As I said, slurred
          speech. And all of those are recognized.
          We call them recognized objective indicia of
          one being under the influence of alcohol. I
          might also add that all of the evidence as a
          whole including circumstances surrounding
          the waiting period for the breath test in
          the police department, all of the evidence
          as a whole establishes that the defendant
          was uncooperative. He was evasive in
          answering direct questions. I might also

                              - 3 -
          add that the defendant had difficulty with
          his identification card and matters in his
          wallet.

          Taking all of those into account the Court
          finds that the weight of the credible
          evidence in this case establishes that Mr.
          Foster was under the influence of alcohol
          not withstanding the absence of scientific
          tests . . . .

     Foster contends that the trial court erred in allowing the

admission of the evidence concerning the circumstances

surrounding his breathalyzer test.     However, we first note that

"[t]he admissibility of evidence is within the broad discretion

of the trial court, and a ruling will not be disturbed on appeal

in the absence of an abuse of discretion."     Blain v.

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).

     "Code § 18.2-266 prohibits drinking alcohol and driving

under either of two separate and distinct circumstances."

Thurston v. Commonwealth, 15 Va. App. 475, 482, 424 S.E.2d 701,

705 (1992).   Code § 18.2-266(i) makes it "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 . . . ."    Code

§ 18.2-266(ii) prohibits driving "while such person is under the

influence of alcohol."   "[B]eing 'under the influence of

alcohol,' is established when any person has consumed enough

alcoholic beverages to 'so affect his manner, disposition,


                               - 4 -
speech, muscular movement, general appearance or behavior, as to

be apparent to observation.'"    Thurston, 15 Va. App. at 483, 424

S.E.2d at 705 (citation omitted).   Thus, whether the accused is

under the influence has "to be determined from all of the

evidence of his condition at the time of the alleged offense."

Leake v. Commonwealth, 27 Va. App. 101, 110, 497 S.E.2d 522, 526

(1998) (citation omitted).

     Nevertheless, Code § 18.2-268.10 provides the following in

relevant part:

          [t]he 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.

     Assuming, without deciding, that the trial court erred by

allowing the Commonwealth to comment on Foster's refusal to take

the breathalyzer test by means of evidence of his actions while

attempting to take the test and thereafter, we find that the

error would be harmless under the facts of this case.    We first

note that the trial court specifically stated that it did not

consider Foster's refusal to take either the field sobriety

tests, or the breathalyzer test in making its determination.    We

have held that "[a] judge, unlike a juror, is uniquely suited by

training, experience and judicial discipline to disregard


                                - 5 -
potentially prejudicial comments and to separate, during the

mental process of adjudication, the admissible from the

inadmissible, even though he has heard both."      Richard Eckhart

v. Commonwealth, 222 Va. 213, 216, 279 S.E.2d 155, 157 (1981).

"Furthermore, in a bench trial, the trial judge is presumed to

disregard prejudicial or inadmissible evidence, and this

presumption will control in the absence of clear evidence to the

contrary."   Hall v. Commonwealth, 14 Va. App. 892, 902, 421

S.E.2d 455, 462 (1992) (citations omitted).     We find no such

evidence to the contrary here.

     Despite the above, in Virginia, non-constitutional error is

harmless "[w]hen it plainly appears from the record and the

evidence given at the trial that the parties have had a fair

trial on the merits and substantial justice has been reached."

McLean v. Commonwealth, 32 Va. App. 200, 211, 527 S.E.2d 443,

448 (2000), citing Code § 8.01-678.      "An error is harmless

(1) if other evidence of guilt is so overwhelming and the error

so insignificant by comparison that the error could not have

affected the verdict, or, even if the evidence of the

defendant's guilt is not overwhelming, (2) if the evidence

admitted in error was merely cumulative of other, undisputed

evidence."   Id. (citations omitted).

     We find the other evidence pertaining to Foster's condition

overwhelmingly supported the conclusion of the trial court that

Foster had consumed alcoholic beverages, and enough so that his

                                 - 6 -
manner, disposition, speech, muscular movement, general

appearance and behavior were visibly affected.   Accordingly, we

affirm the judgment of the trial court.   Given this finding, we

likewise reject Foster's final contention that the evidence was

insufficient as a matter of law to establish that he had been

driving under the influence.   Accordingly, we affirm the

judgment of the trial court.

                                                            Affirmed.




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