BILGER v. COMMONWEALTH Record No. 0605-10-1.
KEGAN MICHAEL BILGER, v. COMMONWEALTH OF VIRGINIA.
Court of Appeals of Virginia, Chesapeake.
November 29, 2011.
Breckenridge Ingles (Martin, Ingles & Ingles, Ltd., on brief), for appellant.
Josephine F. Whalen , Assistant Attorney General II ( Kenneth T. Cuccinelli, II , Attorney General, on brief), for appellee.
Present: Chief Judge Felton, Judges Kelsey and Huff.
WALTER S. FELTON, JR., CHIEF JUDGE.
Kegan Michael Bilger ("appellant") appeals his conviction for driving under the influence of alcohol, in violation of Code § 18.2-266, following a bench trial in the Circuit Court of York County ("trial court"). Appellant contends the trial court erred "to the extent that it applied" the rebuttable presumption of Code § 18.2-269, that one with a blood alcohol level of 0.08% or higher is presumed to be under the influence of alcohol, to the result of appellant's blood alcohol test taken shortly after his involvement in an accident while driving. Appellant's Br. at 1. Appellant further contends the evidence was insufficient to convict him of driving under the influence of alcohol.
Just after midnight on July 29, 2009, appellant overturned his 1999 Chevrolet Blazer, landing it upside down, while driving the vehicle out of the parking lot of a restaurant in York County, Virginia. Appellant had driven the length of six parking spaces when he flipped the Blazer onto its roof. He extricated himself from the Blazer by "disconnect[ing]" his seatbelt, resulting in his landing on his head inside the Blazer. Once he was able to remove himself from the overturned vehicle, his first call was to his insurance company. A company representative advised him to call emergency services, which he did. An ambulance responded to the scene within fifteen minutes of the accident.
Deputy Jason Houston of the York County Sheriff's Department arrived on the scene at about 12:44 a.m. He found appellant sitting on the curb near his overturned vehicle, being attended to by emergency medical personnel who had already arrived at the scene.
Appellant admitted to Deputy Houston that he had been driving the Blazer at the time it overturned. He told the deputy that he attempted to put a "chew" of tobacco in his mouth when he lost control of the vehicle and it flipped over. He stated he consumed four twenty-two ounce beers at the restaurant, ate only a bowl of chowder during the six hours he was there, and denied having anything to drink after the accident. Deputy Houston testified that a strong odor of alcohol emanated from appellant during their conversation.
Paramedics took appellant to a nearby hospital.
A nurse drew appellant's blood using a standard, sealed Virginia Department of Forensics blood analysis kit and a hospital-supplied syringe kit. The certificate of analysis of appellant's blood sample revealed that his blood alcohol content was 0.11%.
At trial, when the Commonwealth moved to admit the certificate of analysis into evidence, appellant objected, arguing that the Commonwealth failed to show the blood was withdrawn consistent with the procedures required by Code § 18.2-268.5.
Appellant testified in his defense. He told the trial court he had been at the restaurant since 6:00 p.m. the evening the accident occurred, that he had consumed four twenty-two ounce beers at the restaurant, and that he ate a bowl of chowder at about 9:00 p.m. He asserted, for the first time at trial, that as he drove out of the parking lot, he was attempting to put chewing tobacco in his mouth when his flip-flop came off and wedged itself against the accelerator, resulting in the Blazer flipping onto its roof.
Appellant renewed his motion to strike the Commonwealth's evidence after all the evidence had been presented. He again asserted the statutory presumption of Code § 18.2-269 did not apply, that absent the presumption or expert testimony, the result of the blood alcohol test reported on the certificate of analysis was meaningless, and that the remaining evidence was insufficient to prove he was guilty of driving while under the influence of alcohol. The Commonwealth contended that even without the benefit of the certificate of analysis, the other combined evidence was sufficient to prove beyond a reasonable doubt that appellant was driving under the influence of alcohol at the time of the accident. From the evidence presented, the trial court found appellant guilty of driving under the influence of alcohol, in violation of Code § 18.2-266.
Code § 18.2-269 Intoxication Presumption
Appellant asserts the "trial court erred to the extent that it applied the [Code] [§] 18.2-269 presumption to the blood alcohol result shown in the certificate of analysis." Appellant's Br. at 1 (emphasis added). He asserts "[i]f the trial court followed the law, the court could not apply the presumption set forth in [Code §] 18.2-269" in assessing whether he drove under the influence of alcohol.
Absent evidence to the contrary, we presume the trial court knew and correctly applied the applicable law.
Nothing in the record on appeal demonstrates that the trial court applied any statutory presumption set forth in Code § 18.2-269 to appellant's blood alcohol test result shown on the certificate of analysis. In finding appellant guilty of driving under the influence of alcohol, the trial court emphasized its reliance on the photographs of the accident taken at the scene and the "circumstantial evidence, in particular but not limited to, the admission by [appellant] that he had consumed four [twenty-two] ounce beers" before the accident. While appellant's argument presupposes that the trial court erroneously relied on the rebuttable presumption authorized by Code § 18.2-269, that one with a blood alcohol content of 0.08% or higher is presumed to be under the influence of alcohol, nothing in the trial court's stated analysis supports appellant's assertion. To the contrary, the record shows that the trial court considered the totality of the evidence and did not rely on the statutory presumption of Code § 18.2-269.
When faced with a challenge to the sufficiency of the evidence, we "`presume the judgment of the trial court to be correct' and reverse only if the trial court's decision is `plainly wrong or without evidence to support it.'"
The totality of the evidence presented at appellant's trial included Deputy Houston's testimony that when he arrived at the scene of the accident, he detected a strong odor of alcohol emanating from appellant; that appellant admitted that he had been at a restaurant since 6:00 p.m. the evening of the accident, consumed eighty-eight ounces of alcohol, and ate only a bowl of chowder while he was there; that while appellant was driving, he flipped his vehicle within the span of six parking spaces; and that, when he extricated himself from his overturned vehicle with glass fragments in his eye, landing on his head and neck, he first called his insurance carrier rather than emergency medical services. A blood sample taken shortly after the accident revealed alcohol in appellant's blood.
From the record on appeal, we conclude the totality of the evidence presented at trial supported the trial court's finding beyond a reasonable doubt that appellant was "under the influence of alcohol," Code § 18.2-266, when he overturned his vehicle on July 29, 2009.
For these reasons, we affirm the judgment of the trial court.
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