Where police stopped appellant in September 2019 for an expired vehicle registration, he cannot have the benefit of retroactive application of a March 2021 statute that would have precluded a vehicle stop. As a result, evidence that appellant failed most field sobriety tests, along with evidence discovered in the vehicle, was properly admitted.
His motion to suppress was correctly denied. His bench trial conviction for driving while under the influence is affirmed.
“Code § 46.2-646(E), which took effect on March 1, 2021, provides that ‘[n]o law-enforcement officer shall stop a motor vehicle due to an expired registration sticker prior to the first day of the fourth month after the original expiration date.” Retroactively applied, the statute would have prevented the police from stopping appellant Hogle for his expired registration.
“Hogle argues that the amendment to Code § 46.2-646 in 2021 adding subsection (E) was purely a change in procedure that applied retroactively. “The ‘usual rule’ regarding a new statute is ‘that legislation is … prospective’ only. …
“This Court recently examined retroactivity principles in cases relating to changes in Virginia law prohibiting a stop or seizure based solely upon the odor of marijuana. Like Code § 46.2-646(E), the statute under review in [Street v. Commonwealth, 75 Va. App. 298 (2022)] provided that any evidence obtained as a result of such an illegal stop or seizure was inadmissible in court. …
“In this case, even if the stop of Hogle’s car based upon an expired registration would be unlawful under the current Code § 46.2-646(E), that provision did not take effect until March 1, 2021. When Trooper Stagner stopped Hogle in September of 2019, the evidence discovered or obtained was not ‘the result of a stop in violation of th[e] subsection’ ‘because one cannot violate a statute or break a rule that does not exist.
“‘Because the [subsection] was not in effect at the time of the search, no law enforcement officer could have violated it[.]’” Montgomery v. Commonwealth, 75 Va. App. 182 (2022).
“Just as we concluded in Montgomery, the illegal seizure prong of Code § 46.2-646(E) ‘is not procedural as it is completely silent on the method of obtaining redress or the enforcement of the right it creates; instead, the scope of the entire [subsection] is both substantive and procedural.’ …
“The seizure provision ‘created a statutory right to be free from’ certain police encounters with citizens ‘for which the evidentiary rule in turn provide[s] a remedy.’ …
“Thus, the seizure prohibition in Code § 46.2-646(E) ‘is a substantive change in the law and cannot be applied retroactively to render’ the stop of Hogle’s car illegal, because ‘the evidentiary prong of the statute, though procedural, is only triggered by a … seizure that violated the substantive portion of the statute.’ …
“Accordingly, we do not disturb the trial court’s ruling on Hogle’s motion to suppress.”
“Based upon the totality of evidence in this record, a rational finder of fact could have found beyond a reasonable doubt that Hogle was operating his vehicle while under the influence of alcohol or a combination of alcohol and drugs. Hogle’s BAC registered 0.069 slightly more than an hour after the trooper saw him driving. Using retrograde extrapolation, Kuhlman opined that Hogle’s BAC when he was driving was between 0.08 and 0.096. While Hogle’s BAC of 0.069 at 4:53 p.m. did not give rise to a presumption that he was under the influence of alcohol, the trial court was entitled to consider the BAC along with other competent evidence. See Code § 18.2-269(A)(2). Hogle admitted consuming “several” shots of tequila earlier in the day, and there were empty mini-bottles of liquor in his car. Trooper Stagner noted the odor of alcohol on Hogle’s breath, his bloodshot eyes, his inability to perform the walk-and-turn test correctly, and his failure to follow any of the instructions on the one-leg test.
“In addition, Hogle’s blood contained a measurable level of THC, which can diminish the ability to concentrate or focus and dissipates quickly in the body after smoking marijuana. A container with marijuana residue and a smoking device were in Hogle’s car.
“Considering all of these facts and circumstances, a reasonable finder of fact could conclude that Hogle had consumed enough alcohol, or a combination of drugs and alcohol, to ‘affect his manner, disposition, speech, muscular movement, general appearance or behavior.’ … Accordingly, we find that the trial court did not err in finding Hogle guilty of DUI[.]”
Hogle v. Commonwealth, Record No. 0027-22-3, Nov. 15, 2022. CAV (Petty). From the Circuit Court of Augusta County (Goodwin) Jennifer T. Stanton for appellant. William K. Hamilton, Jason S. Miyares for appellee. VLW 022-7-517, 11 pp.