Amended traffic stop statute not retroactive

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Appellant’s convictions for driving with a revoked license while intoxicated and for driving while intoxicated, or DWI, third offense within 10 years, are affirmed. An amended statute that prohibits traffic stops for, among other things, a missing tag light — the situation in this case — does not apply retroactively.

Further, the trial court properly admitted appellant’s DMV transcript to establish two prior DWI convictions.

And, the commonwealth’s expert was correctly allowed to testify about the effects of alcohol on a person’s body to corroborate that the officers who stopped appellant observed “the behavior of an intoxicated driver.”

Retroactivity

“Smith argues that the evidence against him should have been suppressed because the troopers’ stated reason for stopping him was for driving with a defective tag light in violation of Code § 46.2-1003.

“On November 9, 2020, three months before the stop, the Governor signed into law … [a] bill [that] added subsection C to Code § 46.2-1003, barring a law-enforcement officer from stopping a person for driving a motor vehicle with defective vehicle equipment. …

“The amendment also imposed a statutory exclusionary rule for evidence obtained through a violation of that requirement:

“‘No evidence discovered or obtained as the result of a stop in violation of this subsection, including evidence discovered or obtained with the operator’s consent, shall be admissible in any trial, hearing, or other proceeding.’ …

“When Smith was stopped on February 19, 2021, however, the 2020 law had not yet taken effect. Without an emergency-enactment clause, the bill did not become law until March 1, 2021, ‘the first day of the fourth month following the month of adjournment of the special session.’ …

“Yet Smith claims that the amendment should be given retroactive effect.”

In Montgomery v. Commonwealth, 75 Va. App. 182 (2022), we held that Code § 18.2-250.1(F) — prohibiting police from stopping a person based ‘on the odor of marijuana’ — did not apply to arrests made before the March 1, 2021 effective date.

“We emphasized the statutory phrase, ‘evidence discovered or obtained pursuant to a violation of this subsection.’ … We explained that the evidence in that case ‘was not discovered or obtained “pursuant to a violation” of Code § 18.2-250.1(F), because one cannot violate a statute or break a rule that does not [yet] exist.’”

In Hogle v. Commonwealth, 75 Va. App. 743 (2022), the court held that ‘Code § 46.2-646(E) did not apply retroactively to bar evidence seized during a traffic stop for an expired registration sticker. We focused again on the in-violation-of language.

“When the trooper there ‘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 the [subsection] was not in effect at the time of the search, no law enforcement officer could have violated it. …

“Given the similar language and common purpose of the amendments in the 2020 legislation, it is impossible to distinguish the in-violation-of language in Code § 46.2-1003(C) from the parallel amendments to the other 18 provisions, including the ones construed in Montgomery and Hogle.

“The troopers who stopped Smith in February 2021 because his tag light was out could not have stopped him ‘in violation of’ subsection C because that subsection had not yet become law. Thus, the trial court did not err in denying Smith’s suppression motion.”

 DMV transcript

“Smith argues that the trial court should have granted his motion to strike the evidence [a DMV transcript] on the DWI third-offense charge. In his view, the letter stating that the clerk could not find the file for the DWI-first conviction negated the Commonwealth’s proof that Smith was convicted of the requisite ‘first’ offense.”

But “the letter reported only that the clerk could not ‘locate’ the file ‘at this time.’ It did not show that the criminal case never existed or that the DWI-first conviction was invalid because the judge failed to sign the disposition.

“Absent such decisive rebuttal evidence, the DMV transcript was “prima facie evidence” of the first and second DWI convictions. …

“Smith next claims that the trial court should have excluded the DMV transcript altogether. He argues in light of the clerk’s ‘To Whom It May Concern’ letter that the probative value of the DMV transcript was ‘substantially outweighed by … the danger of unfair prejudice.’ …

“As ‘prima facie evidence’ of Smith’s two prior DWI convictions … the DMV transcript had substantial probative value. … [T]he trial court could properly conclude from the transcript that Smith would not suffer unfair prejudice from the transcript’s admission.

“The evidence, for instance, did not invite the jury to decide Smith’s guilt based on matters ‘unrelated to the elements’ of the offense. … To the contrary, the number of prior convictions was essential to establishing a third DWI offense within ten years.”

Expert testimony

“The trial court did not abuse its discretion in admitting Dr. Dalgleish’s testimony about how intoxication affects a person’s behavior. Without evidence to show Smith’s intoxication based on his BAC [blood alcohol content], the Commonwealth depended on the observations of Troopers Homlish and Swift, as well as on the dash-camera video.

“Dr. Dalgleish’s testimony helped the jury understand how Smith’s behavior reflected being under the influence of alcohol.

“For example, Dr. Dalgleish explained that the greater the level of alcohol in one’s system, the more pronounced the ‘gaze nystagmus’ effect—the ‘involuntary jerking of the eye,’ like a ‘dry wiper on a windshield,’ occurring when alcohol interrupts signals to the brain.

“That testimony was ‘beyond the knowledge and experience of ordinary persons,’ … and it assisted the jury to understand that what the troopers observed during the field sobriety test — ‘involuntary jerking’ of both of Smith’s eyes — evidenced Smith’s intoxication.

“So we cannot say that the trial court abused its discretion by permitting Dr. Dalgleish’s testimony.”

Affirmed.

Smith v. Commonwealth, Record No. 0775-22-4, Sept. 5, 2023. CAV (published opinion) (Raphael) From the Circuit Court of Caroline County. (Deneke, trial and sentencing; Sharp, pretrial motions) David C. Reinhardt for appellant. Rebecca M. Garcia, Jason S. Miyares for appellee. VLW 023-7-340, 15 pp.