Record supported conviction for DUI maiming

The defendant argued that simply being intoxicated at lower blood alcohol concentrations, without more, was insufficient to support the conviction for DUI maiming. The court held, however, that there was a wealth of additional evidence to support the conviction, including testimony from the responding officer and evidence from the accident scene.

Background

At approximately 7 p.m. on Nov. 1, 2014, Daphiney Francis struck Juanita Marie Washington with her vehicle as Washington was crossing Industrial Street in the City of Hopewell.

When Officer Christopher Hewett arrived at the scene, he spoke with Francis, whom he described as “distraught” and “unsteady on her feet.” He asked Francis if she was under the influence of any substances, and she told him that she had taken her prescription medication at about 6:00 a.m. that morning. She claimed that she was “not under the influence of anything else.” Francis then failed three field sobriety tests.

Officer Hewett placed Francis under arrest and transported her to Riverside Regional Jail. An “intoxilyzer test” was performed 30 minutes after Francis arrived at the jail, and the results of the test measured Francis’s blood alcohol content at 0.12.

Officer Hewett testified that it was dark and raining when the accident occurred and that the pavement was wet. He also testified that, following the accident, he marked a box on a police crash report that stated that Francis had taken “no improper action.” He also viewed a video that may have captured the accident and, apparently, did not change his report after seeing it.

At trial, Francis argued that the commonwealth failed “to introduce any evidence of poor driving, of any excessive speed, of any swerving, of any behavior that would fall into those categories; gross, wanton and reckless disregard for human life.” In response, the commonwealth argued that “drinking in and of itself” was sufficient to establish the gross and wanton element of the charge. The trial court directed the parties to prepare briefs on the issue and allowed the parties another opportunity to argue the matter at a hearing on July 12, 2017.

Following the hearing, the trial judge found Francis guilty of DUI maiming.

Analysis

The sole issue before this court is whether the evidence was sufficient for the trial court to have found that Francis drove “in a manner so gross, wanton and culpable as to show a reckless disregard for human life.” Francis argues that, while high blood alcohol concentrations can be sufficient to establish criminal negligence, “simply being intoxicated at lower blood alcohol concentrations, standing alone, is insufficient to establish criminal negligence” and in this case there is “no further evidence of activity that suggests criminal negligence by” Francis.

The trial court here found that there was “no indication that the defendant [Francis] braked” at all, despite the fact that Washington was crossing in a pedestrian crosswalk marked by a blinking light. Francis’s vehicle continued forward, spun around and careened into a concrete barrier 60 feet away from the victim, who suffered significant injuries as a result of the accident.

Officer Hewett also observed that Francis was unsteady on her feet as soon as he arrived, and she was unable to consistently complete any of the three administered field sobriety tests, illustrating that she was impaired. In addition, the trial judge, as factfinder, was also permitted to consider Francis’s lie to Officer Hewett that she was not under the influence of any substances as an attempt to conceal her guilt.

The trial judge was also permitted to find that the weight of this evidence outweighed the fact that Officer Hewett marked “no improper action” on the police crash report. Considering the totality of the circumstances in this case, we cannot say that no rational factfinder could have found that Francis acted “in a manner so gross, wanton and culpable as to show a reckless disregard for human life.” Therefore, the trial court did not err in finding that the required criminal negligence was present – and in then finding Francis guilty of DUI maiming.

Affirmed.

Francis v. Commonwealth of Virginia, Record No. 0094-18-2, March 5, 2019. CAV (Beales) from Hopewell Cir. Ct. (D’Alton, Jr.). Matthew C. Stewart for Appellant, Virginia B. Theisen for Appellee. VLW No. 019-7-042, 9 pp. Unpublished.