Article from VLW:
Breathalyzer Case Remanded for Burping Driver
Published: April 8, 2011
Tags: Criminal, Judge Robert P. Frank, Virginia Court of Appeals
The trial court erred in failing to determine if defendant’s burping made him physically unable to take a breathalyzer test; a remand is required to determine if defendant’s jury trial conviction for second offense DUI in 10 years can stand, the Court of Appeals says.
A university police officer stopped defendant at 1:22 am for speeding and squealing tires. About a half hour later, after defendant was transported to jail to take the breathalyzer test, the test operator instructed him that burping would require restarting the test after a twenty minute waiting period.
Defendant began burping. After the test was restarted three times, defendant was charged with refusal to take the test. Defendant claimed to have suffered over a decade with acid reflux that caused him to belch involuntarily on a daily basis. The officer refused defendant’s request to take a blood test when brought before a magistrate. The trial court twice denied defendant’s motion to dismiss on the basis defendant had no right to either test.
We agree with defendant that the trial court erred in failing to make any finding as to his physical ability to take the breath test. We disagree with the commonwealth that defendant waived this issue. The trial court failed to make any determination on the issue of physical ability. As we said in Brown-Fitzgerald v. Commonwealth, 51 Va. App. 232 (2008), Va. Code § 18.2-268.2(B) imposes an obligation on police who choose to compel submission to chemical testing to provide a blood test if the breath test is unavailable or the defendant physically unable to submit. Defendant has the burden of proof under Hudson v. Commonwealth, 266 Va. 371 (2003). The evidence was conflicting. If defendant was unable to take the breath test, the charges must be dismissed; if he was able, the conviction stands. We remand to the trial court to make this factual determination based on the evidence already before the court.
Packard v. Commonwealth (Frank) No. 1539-10-2, March 29, 2011, Charlottesville Circuit Court (Hogshire), Graven W. Craig for appellant, Benjamin H. Katz, AAG. VLW 011-7-115(UP), 7 pp.