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BENNETT v. COMMONWEATH



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BENNETT

v.

COMMONWEALTH


NOVEMBER 16, 1999

Record No. 0925-98-2

ALLEN DALE BENNETT

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Thomas N. Nance, Judge

Present: Judges Benton, Willis and Senior Judge
Cole

Argued at Richmond, Virginia

OPINION BY JUDGE JERE M. H. WILLIS, JR.

William J. Doran, III (Chaplin, Papa &
Gonet, on brief), for appellant.

Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General; Richard B. Campbell,
Assistant Attorney General, on

brief), for appellee.


On appeal from his conviction of operating a
motor vehicle while under the influence of alcohol, in violation
of Code Sect. 18.2-266, Allen Dale Bennett contends that the
trial court erred (1) in refusing to decide whether the
Commonwealth complied with Code Sect. 18.2-268.2 and ruling
that this issue was a jury question, and (2) in refusing to allow
him to introduce evidence of the district court testimony of an
absent witness, whom he had failed to summon. We reverse the
judgment of the trial court on the first issue and remand the
case.

On January 18, 1997, Bennett ran a red light
and almost hit a police cruiser driven by Richmond City Police
Officer John B. Sheppard. Officer Sheppard followed Bennett, who
stopped in an alley and exited his vehicle. Bennett appeared to
be intoxicated. Officer Sheppard charged him with driving while
intoxicated and transported him to the police station for a
breathalyzer test. Officer Sheppard administered the test several
times, but Bennett failed to produce a readable breath sample.
Officer Sheppard did not offer Bennett a blood test.

Bennett moved pretrial for dismissal of the
charge, contending that by failing to provide him a blood test,
the Commonwealth failed to comply with Code Sect. 18.2-268.2
and thereby denied him potentially exculpatory evidence. See
Breeden v. Commonwealth, 15 Va. App. 148, 150, 421 S.E.2d
674, 676 (1992) (decided under former Code Sect. 18.2-268).

Code Sect. 18.2-268.2 provides, in
relevant part:

B. Any person so arrested . . . 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.

Id.

At the hearing on his motion, Bennett testified
that he was physically unable to take the breathalyzer test due
to an asthmatic condition, that he attempted unsuccessfully to
blow into the breathalyzer, and that he requested a blood test,
which was denied. He argued that by denying him a blood test, the
Commonwealth failed to comply with Code Sect. 18.2-268.2 and
denied him potentially exculpatory evidence. Officer Sheppard
testified, however, that Bennett never stated that he had an
asthmatic condition, that he attempted to circumvent the breath
test by blowing around the tube, and that he never requested a
blood test.

The following dialogue ensued between the trial
court and defense counsel:

THE COURT: Do you have anything further? Do you
want to be heard?

MR. DORAN (defense counsel): Yes, sir, just
briefly. Judge, under 18.2268.2 (sic), the Commonwealth is
required if the breath test is unavailable or if the individual
is physically unavailable to take the breath test to administer
the blood test. It’s an absolute requirement.

THE COURT: Isn’t that a jury question?

MR. DORAN: No, sir, I don’t think so.

THE COURT: How am I going to say that, the, the
officer says he was blowing out the side of the mouth and at one
time, he wasn’t blowing at all. Then, your client comes on and
says, well, no, I tried but it didn’t work. What am I supposed to
do?

MR. DORAN: I understand that there is a
question of credibility there. If you choose to resolve against
the defendant, you can certainly do that.

THE COURT: Well, isn’t it a jury question?
Isn’t this something that a fact finder to decide?

MR. DORAN: No, sir. It seems to me that the
statute is mandatory and if there is sufficient indication, I
think the standard of proof is on the probable cause. You may
reject it and say that factually we have not laid the predicate
for you to call into play the mandatory language of the statute.
If you do that, it’s not much I can say except I appeal or
otherwise.

THE COURT: Wait a minute. You are hanging your
hat on the fact that he asked for a blood test?

MR. DORAN: That is right.

THE COURT: The officer said he never asked for
a blood test.

* * * * * * *

THE COURT: Isn’t this a jury question?

* * * * * * *

THE COURT: We will have to let the jury decide.
It’s not for me to decide. I can’t just do that. I’m not even
going to try the case. I’m just going to sit here and watch you
try the case.

The order reciting the proceedings on Bennett’s
motion to dismiss states, in essential part:

Evidence and arguments of counsel having this
day been presented on the defendant’s motion to dismiss these
Appeals, the Court denies said motion.

Bennett contends on brief that the trial court
erred in denying his motion to dismiss. His appeal was granted,
however, on the question of whether the trial court erred in
ruling that the Commonwealth’s compliance with Code
Sect. 18.2-268.2 was a jury issue. We limit our analysis to
the question granted. "If this Court grants defendant’s
petition for appeal on certain issues, as stated in the petition,
any alteration of these issues in appellant’s opening brief, by .
. . changing their language or wording, ‘is contrary to accepted
practice and is improper.’" Iglesias v. Commonwealth,
7 Va. App. 93, 96 n.2, 372 S.E.2d 170, 171 n.2 (1988) (en banc)
(citation omitted).

"It is firmly established law in this
Commonwealth that a trial court speaks only through its written
orders." Davis v. Mullins, 251 Va. 141, 148, 466
S.E.2d 90, 94 (1996). Normally, in reviewing a trial court’s
factual holding, we inquire whether the record contains credible
evidence supporting that holding. Were that the standard of
review to be applied in this case, we would affirm the trial
court’s dismissal of Bennett’s motion. Officer Sheppard’s
testimony sufficiently supported that ruling.

However, upon the record presented in this
case, our first inquiry is to identify the trial court’s ruling.
Its holding, embodied in the order, can be read fairly only in
the context of its pronouncements from the bench. From the bench,
the trial court made no ruling and directed the entry of no order
addressing the merits of the motion. The order itself contains no
recitation suggesting a ruling on the merits. Rather, the trial
court stated plainly and repeatedly that it found the issues
raised by the motion inappropriate for decision by it. It refused
decision on those issues and reserved them for presentation to
the jury, should Bennett so elect.
[1] Plainly, the trial court’s
dismissal of the motion was based not upon a determination on the
merits, but rather upon its refusal to entertain the motion as a
preliminary matter. In so ruling, the trial court erred.

The credibility issue concerning compliance
with Code Sect. 18.2-268.2 was a question of fact
preliminary to a ruling of law. This question necessarily
required determination by the trial court. "Issues of fact
are usually left to the jury, but there are strong reasons here
for not doing so." 6 McCormick on Evidence
Sect. 53 (Edward W. Cleary ed., 3rd ed. 1984). The motion to
dismiss addressed whether the Commonwealth might prosecute the
charge.

"Questions as to the competency or
admissibility of testimony . . . are referred to the decision of
the judge. ‘As it is the province of the jury to consider what
degree of credit ought to be given to evidence, so it is for the
court alone to determine whether a witness is competent, or the
evidence admissible. Whether there is any evidence is a question
for the court; whether it is sufficient is for the jury. And
whatever antecedent facts are necessary to be ascertained, for
the purposes of deciding the question of competency – as,
for example, whether a child understands the nature of an oath,
or whether the confession of a prisoner was voluntary, or whether
declarations offered in evidence as dying declarations were made
under the immediate apprehension of death – those, and other
facts of the same kind, are to be determined by the court, and
not by the jury.’"

Mullins v. Commonwealth, 113 Va. 787,
791, 75 S.E. 193, 195-96

(1912) (citations omitted).

The action of the [trial] court in leaving
evidence objected to provisionally to the jury, to be considered
or rejected by them, as they might determine its admissibility or
inadmissibility under the instruction given by the [trial] court,
was not proper practice, as the jury has nothing to do with the
admissibility of the evidence.

Id. See 7B Michie’s
Jurisprudence
, Evidence Sect. 287 (1998). "The
factual determinations which are necessary predicates to rulings
on the admissibility of evidence and the purposes for which it is
admitted [as well as related questions] are for the trial judge
and not the jury." Rabiero v. Commonwealth, 10 Va.
App. 61, 64, 389 S.E.2d 731, 732 (1990). See also
C. Friend, The Law of Evidence in Virginia,
Sects. 1-5 (4th Ed. 1993). The same rule governs resolution
of preliminary questions of fact underlying rulings of law by a
trial court.

If the trial court believed Bennett, Code
Sect. 18.2-268.2 required dismissal of the charge. If,
however, the trial court believed Officer Sheppard, the motion to
dismiss should have been denied.

The trial court erred in refusing to determine
the preliminary question of credibility and in refusing to rule
on the merits of the motion to dismiss.

We reverse Bennett’s conviction and remand the
case to the trial court for retrial if the Commonwealth be so
advised. We do not address Bennett’s second assignment of error,
that the trial court erred in refusing to admit evidence of the
prior testimony of a witness whom the defense had failed to
summon, as that issue is unlikely to occur at retrial.

Reversed and remanded.


Cole, J., dissenting.

Because I disagree with the opinion of the
majority, I dissent. Bennett was convicted of driving under the
influence of alcohol with two prior convictions within ten years.
On appeal, we granted his petition on the following two issues:

I. Did the trial judge err in ruling that the
issue of whether the Commonwealth had complied with Code
Sect. 18.2-268.2 was a jury issue that he would not decide?
[2]

II. Did the court err in refusing to allow the
defendant to put on evidence as to the testimony of a material
witness who had testified in the [general district] court and who
was shown to be unavailable in the trial court?

ISSUE I: MOTION TO DISMISS

I disagree with the majority’s resolution of
the first issue because the circuit court did not rule that
Bennett’s physical inability to take the test was a jury issue.
The trial judge decided the issue as a matter of law in the April
9, 1998 written order. The only matter submitted to the jury at
the April 14, 1998 trial was whether Bennett was guilty of
driving under the influence of alcohol with two prior convictions
within a ten-year period. The jury found Bennett guilty of that
charge. We denied the sufficiency of the evidence issue at the
petition stage and found that Sheppard’s testimony was competent,
was not inherently incredible, and was sufficient to prove beyond
a reasonable doubt that Bennett was guilty of driving under the
influence of alcohol.

The general district court convictions entered
on January 20, 1998, were appealed to the circuit court on
or about March 26, 1998. Bennett filed a motion to dismiss the
charges of driving under the influence and unreasonable refusal
to submit to a breath or blood test, alleging that he agreed to
take a breath test to determine the alcohol content of his blood
but was advised that the results were not
"satisfactory." Citing Breeden v. Commonwealth,
15 Va. App. 148, 150, 421 S.E.2d 674, 676 (1992), a case decided
under former Code Sect. 18.2-268, Bennett contended the
Commonwealth failed to comply with Code

Sect. 18.2-268.2 and thereby denied him
potentially exculpatory evidence.

The motion to dismiss was heard by the circuit
court on April 9, 1998; no jury was present. To understand the
issues, it is essential to understand the law in existence on
January 18, 1997, the date Bennett committed the offenses
charged against him.

Prior to January 1, 1995, Code
Sect. 18.2-268.2 provided, in pertinent part, that
"[a]ny person so arrested for a violation of
Sect. 18.2-268.2(i) or (ii) or both . . . shall elect to
have either a blood or breath sample taken but not both."
That code section was revised by the General Assembly in 1994 and
became effective on January 1, 1995. The revised statute
provided, in pertinent part:

Any person so arrested for a violation of
Sect. 18.2-266(i) or (ii) or both . . . 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.

Id.

Therefore, as of January 1, 1995, the driver’s
choice of which test to take was eliminated and the statute
mandated that such person submit to a breath test. A blood test
must be given only when a breath test is unavailable or the
accused is physically unable to take one. See id.; Lamay
v. Commonwealth
, 29 Va. App. 461, 468-69, 513 S.E.2d 411,
414-15 (1999).

Because Bennett filed the motion to dismiss, he
had the burden to go forward with the evidence. See id.
at 475-76, 513 S.E.2d at 418. At the April 9, 1998 hearing on his
motion to dismiss, Bennett called the arresting officer as his
first witness. Sheppard testified that around midnight on January
18, 1997, he was stopped at a red light at Meadow and Main
Streets in Richmond. When the light turned green for the officer,
he proceeded into the intersection. Bennett ran the red light in
a pickup truck, and Sheppard had to slam on his brakes to prevent
a collision. Bennett failed to stop. Sheppard activated his
emergency lights and siren. Within a couple of blocks, Sheppard
overtook him, but Bennett continued driving. At Stafford Street,
Bennett made a right turn and then turned into an alley, where he
stopped and cut off the ignition.

According to Sheppard’s testimony, when Bennett
exited his vehicle, he "kind of bobbled, rocked back and
forth between the door and the door jam on the pickup
truck." He appeared unsteady on his feet, and Sheppard
smelled alcohol on his breath. His eyes were red and glassy.
Bennett told the officer that he had "a couple of
beers," but he refused to perform the usual field sobriety
tests at the request of the officer. Sheppard also testified that
he transported Bennett to police headquarters and advised him of
his rights under the implied consent law.

On cross-examination by the Commonwealth’s
Attorney, Sheppard testified that Bennett was given three
opportunities to take the breath test. According to Sheppard, on
the first test, Bennett "placed his lips around the plastic
mouth piece and inflated his cheeks as to appear to be blowing
into the machine. The machine gives you a great amount of time to
attempt to give a sample. He did this for several seconds,
probably 30 or 45 seconds, I believe."

After waiting the time required by law, the
officer gave Bennett the test a second time. Sheppard stated that
Bennett placed his lips around the mouthpiece and allowed the air
to escape rather than enter the mouthpiece. The machine ran out
of time and registered that it had not received an air sample. At
that point, Sheppard took Bennett before a magistrate. The
magistrate read Bennett the implied consent law and asked if he
would consent to take the breath test. Bennett agreed to take the
test. However, he did the same thing he had done with the
officer. He expanded his cheeks so that the machine would not
receive air. Thereupon, the magistrate cited Bennett for refusal
to take the breath test.

Officer Sheppard testified that Bennett did not
advise him of any physical problems that would prevent him from
taking the breath test. He also testified that the machine was
checked, was in proper order, was operated by a certified
operator, and that the operator advised Bennett "several
times that the machine was not getting air and he needed to blow
into the mouth piece." Sheppard further stated that Bennett
never requested a blood test.

At the hearing, Bennett testified in his own
behalf. In response to questions from his attorney, he testified
that he now knew that he had a physical condition that might
impact his ability to take the test, namely, bronchitis and
asthma. The following dialogue occurred between Bennett and his
attorney:

[Defense Counsel]: You cannot say today

you had asthma in January of 1997, Can you?

[Bennett]: Just by what my doctor says,

that you cannot occur [sic]. Like it’s in

my lungs now. If a doctor was here and put

a thing on there, you could hear it in my

chest when I breath [sic].

Bennett acknowledged that he did not tell the
police officer or the magistrate that physical or medical
problems prevented him from blowing into the breathalyzer. The
reason he gave for this failure was that he was "never asked
about my medical condition." In response to a question posed
by the trial judge, Bennett admitted he had successfully blown
into a breath machine on two previous occasions in 1989 and in
1994.

After all of the evidence at the hearing was
presented, the trial judge asked Bennett if he had anything
further to present. Defense counsel responded and argued that
under Code Sect. 18.2-268.2, "the Commonwealth is
required if the breath test is unavailable or if the individual
[is unable] to take the breath test, to administer the blood
test. It’s an absolute requirement."

Following this statement, the ensuing dialogue
took place:

THE COURT: Isn’t that a jury question?

[Defense Counsel]: No, sir, I don’t [think] so.

THE COURT: [T]he officer says he was
blowing

out the side of the mouth and at one time,
he

wasn’t blowing at all. Then, your client
comes

on and says, well, no, I tried but it
didn’t

work. What am I supposed to do?

[Defense Counsel]: I understand that there
is a question of credibility there. If you choose to resolve
[credibility] against the defendant, you can certainly do
that.

THE COURT: Well, isn’t it a jury question?
Isn’t this something that a fact finder [has] to decide?

I believe the resolution of this issue is not
as easy as the majority suggests. It is common in almost every
jury case for the judge to instruct the jurors that they are the
judges of the facts, the credibility of the witnesses and the
weight of the evidence. The judge, as he would be required to do
from time to time, asked counsel on both sides for advice and
guidance on the issue. Further, as previously stated, Code
Sect. 18.2-268.2 was amended effective as of January 1,
1995, and no cases had been decided interpreting the statute at
that time. The trial judge and the attorneys did not have the
benefit of Lamay, which was not decided until April 13,
1999, one year later. In Lamay, we said:

Appellant contends the trial court erred in
refusing to allow testimony relating to the failure of the police
to comply with the requirement that when a person is physically
unable to submit to a breath test, a blood test shall be given.
We have not had an opportunity to construe fully the provisions
of Codes Sect. 18.2-268.2 since its effective revision date
of January 1, 1995. Therefore, this case comes before us as
one of first impression and requires us to analyze Code
Sect. 18.2-268.2(B) in situations where at his or her DUI
trial an accused DUI driver alleges physical inability to take a
breath test. We must determine, under the limited facts of this
case, what evidence is admissible, the procedure to follow, and
what remedy, if any, should issue.

Id. at 467-68, 513 S.E.2d at 414-15
(emphasis added).

Immediately after the trial judge asked whether
this was a jury issue, the following exchange occurred:

[Defense Counsel]: It seems to me that the
statement is mandatory and if there is sufficient indication,
I think the standard of proof is on the probable cause. You
may reject it [defendant's evidence] and say that factually
we have not laid the predicate for you to call into play the
mandatory language of the statute. If you do that, it’s not
much I can say except I appeal or otherwise.

THE COURT: Wait a minute. You are hanging
your hat on the fact that he asked for a blood test?

[Defense Counsel]: That is right.

THE COURT: The officer said he never asked

for a blood test.

The advice given by defense counsel was
correct. The trial judge had to decide whether to believe the
police officer or Bennett. If he believed the police officer,
Bennett had no defense because he had failed in his burden to
prove he was physically unable to take the breath test. See
id. at 475-76, 513 S.E.2d at 418 (holding that the accused
bears the burden of establishing physical inability). Thus, had
the trial judge believed Sheppard, the motion to dismiss would
have had to be denied, and the DUI case would proceed. If the
trial judge believed Bennett, Bennett was unable to take the
breath test, and he was entitled to a blood test. The failure to
provide a blood test would have required dismissal.

Placed in the position of choosing between two
conflicting positions, the trial judge conscientiously expressed
his dilemma:

I don’t know. I have never seen the man or know
anything about his case. What I’m saying is I don’t know what the
facts are. He could have been coming from a bar or he could have
been coming from a birthday party or he could have been coming
from church. I don’t know.

In this setting, the trial judge understandably
but perhaps erroneously said: "We will have to let the jury
decide."

However, I do not view the trial judge’s
statement as constituting an order or ruling on the motion to
dismiss. He never took any action or entered any order based upon
the statement. It is well understood that circuit court judges
act only through written, signed orders. See Rule 1:1; Davis
v. Mullins
, 251 Va. 141, 148, 466 S.E.2d 90, 94 (1996).
Nothing in this record suggests that the attorneys understood
otherwise on April 9, 1998. Furthermore, judges can change their
minds, and the Rules of Court give them twenty-one days to change
or correct any ruling.

The statement made by the trial judge did not
come at the end of or conclude the hearing on the motion to
dismiss. The trial judge and counsel continued to talk about the
appearance of defense witnesses for the trial scheduled on April
14, 1998. If counsel thought the judge had ruled upon the motion,
which would have decided the case, they would have had no reason
to discuss further proceedings that were to occur in the circuit
court. After the discussion about the witness, the motion hearing
was adjourned with no decision having been made. In effect, the
judge took the motion under advisement.

The majority opinion apparently agrees because
it states, "[f]rom the bench, the trial court made no ruling
and directed the entry of no order addressing the merits of the
motion." Bennett’s jury trial was scheduled for April 14,
1998, five days after the hearing; therefore, no immediate ruling
was required.

On the same date as the hearing, April 9, 1999,
the trial judge entered an order which could not have been
clearer or more explicit. He ruled and appropriately memorialized
his ruling in the following signed, written order:

Evidence and arguments of counsel having this
day been presented on the defendant’s motion to dismiss these
Appeals, the court denies said motion.

This order complies in every respect with Rule
1:1.

In its opinion, the majority states that the
April 9, 1998 "order itself contains no recitation
suggesting a ruling on the merits." I respectfully disagree.
In the order, the trial judge explained that his ruling was based
upon the evidence and arguments of counsel at the hearing held
earlier that day.

The trial judge was not required to give any
written explanation for his signed, written order. In Freeman
v. Peyton
, 207 Va. 194, 196, 148 S.E.2d 795, 797 (1966),
Freeman contended he "was denied a full and complete hearing
because the [trial] judge ruled on only the first two questions
raised by [his habeas corpus] petition." Finding that
Freeman failed to distinguish "between failure to rule and
failure to announce reasons for a ruling," id., the
Supreme Court stated:

[T]he [trial] judge ruled on all points raised
in the petition. The [trial] Judge saw fit to state reasons for
rejecting two of the alleged grounds for granting the writ, and
he saw fit to refrain from stating reasons for rejecting the
other . . . alleged grounds. He may have refrained because he
thought the reasons self-evident. In any event, he was not
required to give his reasons.

Id.

The majority further states that "plainly
the trial court’s dismissal of the motion was based not upon a
determination on the merits, but rather upon its refusal to
entertain the motion as a preliminary matter. In so ruling, the
trial court erred." Again, I respectfully disagree. The
April 9, 1999 order is based upon the merits, and, in the order,
the trial court expressly and unequivocally decided the motion as
a preliminary matter, as appellant requested. The trial judge
committed no error.

The only ruling made by the trial court upon
the motion to dismiss was on the issue of Bennett’s ability to
take the breath test. Resolution of that issue rested on which
witness to believe, Sheppard or Bennett. This issue relates to
the previous dialogue between the trial judge and defense
counsel. Defense counsel advised the judge, "I understand
that there is a question of credibility there. If you choose to
resolve against the defendant you can certainly do that."
The trial judge accepted Sheppard’s testimony that Bennett
repeatedly feigned his attempts to take the breath test, and he
rejected Bennett’s unsubstantiated theory, raised for the first
time at that hearing, that he might possibly have an asthmatic
condition making him physically unable to take a breath test.
That disposed of the motion to dismiss on the issue of Bennett’s
physical inability to take the breath test. Because Bennett
failed to establish physical inability, he was not entitled to a
blood test under Code Sect. 18.2-268.2.

Moreover, had Bennett truly believed the trial
judge ruled that the jury was to determine whether he was
physically unable to take the test, he would have attempted to
raise that issue at trial before the jury. He did not do so. At
trial, the parties confined themselves to Bennett’s guilt,
namely, whether he was intoxicated. Ostensibly, Bennett failed to
bring the matter up at trial because he was aware of the written
order denying the motion to dismiss based on the credibility
determination made by the trial judge and suggested by defense
counsel at the pretrial hearing. Further support for that
proposition can be found in the fact that Bennett limited his
question presented in his petition to the trial judge’s failure
to dismiss because he was denied a blood test without a showing
that it was unavailable.

II. REFUSAL TO ADMIT HEARSAY

Although the majority did not decide the second
granted issue, it also is without merit. In the general district
court, Bennett called Pamela Peterson as a witness. No record was
made of her testimony. When the trial was scheduled in circuit
court, Peterson could not be located. Bennett did not ask for a
continuance. Bennett wanted to call the Commonwealth’s Attorney,
a court clerk, or some other person who may have been present at
the district court trial, to testify as to what they could recall
about Peterson’s testimony. No proffer was made to the circuit
court as to what their testimony would have been.

"When [evidence] is rejected before it is
delivered, an appellate court has no basis for adjudication
unless the record reflects a proper proffer." Whittaker
v. Commonwealth
, 217 Va. 966, 968, 234 S.E.2d 79, 81 (1977).
"It is incumbent upon the proponent of the evidence to make
a proffer of the expected answer." Speller v.
Commonwealth
, 2 Va. App. 437, 440, 345 S.E.2d 542, 545
(1986). Without a proffer, "we are precluded from a
consideration of this issue on appeal." Mostyn v.
Commonwealth
, 14 Va. App. 920, 924, 420 S.E.2d 519, 521
(1992). Accordingly, I cannot say the trial court’s ruling was
erroneous.

For all of the above-stated reasons, I would
affirm the conviction.

 

FOOTNOTES:

[1] These issues were not presented
to the jury.

[2] This issue, as worded by this
Court, was not specifically argued at Bennett’s circuit court
trial or in his petition. Bennett suggested in his petition that
the trial judge "inaccurately estimated the situation as a
simple comparison of competing credibilities, to be assessed by
the jury instead of by the court," and he argued that the
trial judge "committed reversible error in avoiding the
issue." In essence, however, Bennett maintained that the
trial court erroneously ruled against him and for the
Commonwealth. In accordance with that argument, he presented the
following question in his petition:

Did the trial court err in denying defendant’s
motion to dismiss the charges because he was denied the
opportunity to take a blood test in violation of Code
Section 18.2-268.2 of the Virginia Code? Point preserved by
pretrial motion; see Tr. of 4/9/98 hearing, p. 1-22.

The argument portion of his petition contains
the following heading:

The trial court should have dismissed the
charge of driving while intoxicated against Mr. Bennett as he was
in essence denied a blood test without any showing that the same
was unavailable.

As I shall later explain, the burden was not on
the Commonwealth to prove that a blood test was unavailable.
Instead, the burden was on Bennett to prove he was physically
unable to take the breath test.

In his brief, Bennett again maintained that the
thrust of his issue was that the trial judge erred in refusing to
find that he was denied a blood test. He phrased the issue, as
follows:

The trial court should have dismissed the
charge of driving under the influence against Mr. Bennett as he
was in essence denied a blood test without any showing that the
same was unavailable.

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