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Virginia Beach DUI Driving Under Influence Breathalyzer Test Suppression Motion Lawyers Attorneys
LEE BANKS WALKER v. COMMONWEALTH OF VIRGINIA
COURT OF APPEALS OF VIRGINIA
April 22, 2003, Decided
On July 15, 2001, Virginia Beach Police Officer observed Lee Walker's vehicle weaving. When Officer approached Walker, he noticed that Walker "had a very, very strong odor of alcohol about his person. As Walker stepped from the automobile, and indicated that he consumed three beers approximately two hours prior to the stop. Walker failed three field sobriety tests. As a result of Walker's failing the field sobriety tests, Officer placed him under arrest for driving under the influence of alcohol. Once Walker was in custody, Officer attempted to administer a breathalyzer test. Walker twice blew ineffectively into the machine, and the machine registered "invalid sample," Officer Johnson did not attempt to administer the test again. Walker was indicted for driving under the influence of alcohol, third or subsequent offense, in violation of Code §§ 18.2-266, 18.2-270, and 18.2-10. Walker made a motion to dismiss the charge, arguing he was denied the right to and the benefit of breathalyzer results. The Circuit Court of the City of Virginia Beach denied the motion and defendant was subsequently convicted. Defendant appealed.
Issue:
- Whether the trial court erred in denying his motion to dismiss the DUI charge?
Discussion:
The Court finds that there are Sufficient evidence to support the trial court's finding that defendant deliberately refused to cooperate in giving a breath sample. Defendant, who had two prior DUI convictions, failed three field sobriety tests. Then, in attempting a breathalyzer test, he barely blew into the machine, resulting in the apparatus not being activated. The arresting officer informed defendant that he was not performing the test properly, waited a moment, and let defendant try again, but defendant again failed to blow as instructed. The officer did not try the test again, and defendant did not give a medical reason for not giving a valid breath sample. It was reasonable for the officer to conclude that defendant was not cooperating and that he would continue his non-cooperation if further tests were attempted.
Thus, this court concludes that the denial of the motion to dismiss was not an abuse of discretion. Finally, the finding of guilt was supported by, inter alia, defendant's admission that he had consumed alcohol, his incoherent speech, and the field sobriety tests.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content
About the Author
The SRIS Law Group is a law firm with offices in Virginia, Maryland & Massachusetts. The law firm assists clients with criminal/traffic defense, family law, immigration, civil litigation, bankruptcy & military law. The law firm has Virginia offices in Fairfax County, Richmond, Virginia Beach, Loudoun County, Lynchburg County, Prince William County & Fredericksburg, Virginia. The Maryland offices are in Montgomery County & Baltimore. The Massachusetts offices are in Boston & Cambridge. The New York office is in New York City. The North Carolina Office is in Charlotte, NC which is in Mecklenburg County. The California office is in Orange County, CA.
The law firm has more than 11 offices in Virginia, Maryland, Massachusetts, New York, California, North Carolina & India to serve the clients of the SRIS Law Group.
Never Say Never (From The Original Motion Picture)