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Rich v. Commonwealth

Supreme Court of Virginia

December 15, 2016





         Riana Michelle Rich ("Rich") appeals from a judgment of the Court of Appeals of Virginia which affirmed her conviction in the Circuit Court of the City of Virginia Beach ("trial court") for DUI-reckless-victim permanently impaired ("DUI maiming") in violation of Code § 18.2-51.4.[1] Rich v. Commonwealth, Record No. 0565-14-1, 2015 Va.App. LEXIS 320, at *15 (Nov. 10, 2015) (unpublished). On appeal, Rich argues that the trial court erred in finding that the evidence was sufficient to prove causation and the criminal negligence element of DUI maiming, and further, that the Court of Appeals erred in affirming her conviction.[2]

         I. BACKGROUND

         On August 6, 2011, at approximately 2:20 a.m., in clear weather, Daja Young was driving on Virginia Beach Boulevard. There were two westbound lanes and two eastbound lanes. Young was traveling westbound in the right hand lane between 15 and 20 miles per hour in a 35 mile-per-hour zone, when she saw something moving off the right side curb. She was driving "very cautiously" and "slow" because she was driving an unfamiliar vehicle. She realized that what she saw coming off the curb, entering her side of the street, was a man (later identified as John Costello) on a motorized electric wheelchair. She testified that Costello was attempting to cross from the Convention Center to the other side of the street where there was a trailer park. The area was "poorly lit, " but Young did not turn on her bright lights. She testified she still could have seen Costello even if she had not been going so slowly. Young stopped and allowed Costello to proceed across the lane in front of her. He was traveling about "two or three miles per hour." His wheelchair did not have lights or reflectors, and Young testified he was operating the wheelchair in a very erratic fashion.

         As Costello made it to the middle of the road, Young pulled into the left westbound lane, beside Costello, and told him to be careful. She testified she did this because "if [she] was anybody else driving fast, he would have gotten hit if [she] wasn't cautious." Young continued traveling westbound and noticed a vehicle traveling eastbound in the opposite lane. Young estimated that vehicle was traveling about 25 or 30 miles per hour. After that vehicle passed Young, she heard a crash behind her. Through her rearview mirror, Young saw "everything scatter" . . . "the wheelchair go up and everything detach." Before she heard the crash, Young had last seen Costello in the middle of the road "facing partially towards the oceanfront and partially across the street." Young testified that from the time she allowed Costello to pass and she continued westbound to when she heard the crash "[m]aybe a couple seconds . . . [m]aybe thirty seconds or something" passed.

         Realizing there had been an accident, Young turned around and returned to the scene where she found Costello lying on the ground and where Rich, the driver of the vehicle that hit the wheelchair, was "just panicking" and "scared." When Young asked Rich what had happened, she said "she was just looking down. And then she said - that's it."

         Around the time of the crash, Officer Kolby Reese was in the Convention Center parking lot when he heard "what sounded like a motor vehicle collision" coming from Virginia Beach Boulevard "probably 150 feet, 200 feet" away. Reese looked in the direction of the crash and saw Rich's car stopped in the roadway near the trailer park entrance. Reese went promptly over to the scene, where he found Rich's car stopped in the far right lane facing eastbound, Costello lying unconscious in the roadway in front of the car, and the wheelchair also in the roadway "off to the side." Reese heard Rich say that "she looked down for only a second and didn't see the [wheelchair]."

         Officer Colin Mack spoke with Rich at the scene and administered field sobriety tests to her. Mack testified Rich had a very strong odor of alcohol coming from her breath; had bloodshot, watery, and glassy eyes; and was swaying. Rich told Mack several versions of when and how much alcohol she had consumed. At the scene, she stated she had consumed three-quarters of a normal-sized bottle of wine and that she had stopped drinking at 6:00 p.m. On the way to the jail, after her arrest, Rich stated she also had "drinks" at a baseball game she went to with her boyfriend after 7:00 p.m. She said she and her boyfriend went to bars later, but she denied drinking alcohol there. She told Mack she was driving approximately 30 miles per hour, when she leaned over so her boyfriend could light a cigarette for her. Rich demonstrated this action for Mack, who described Rich's actions by stating: "She basically leaned forward and put her head to the right where [the boyfriend] was and took her eyes off the road. And after that had occurred, when she looked up the crash occurred and she saw the victim in front of her."

         At 4:01 a.m., Rich took a breath test, which registered a blood alcohol content ("BAC") of .13. After administration of the test, Rich told Mack she had not gotten a lot of sleep the night before, only two hours, waking up at 8:00 a.m. that morning. Testifying as an expert in breath testing and forensic toxicology, Melissa Kennedy, Supervisor of the Breath Alcohol section of the Richmond office of the Department of Forensic Science, testified that at a BAC of .05, a person starts to have problems with "divided attention." Consequently, reaction time begins to slow, and safe driving is impaired. At a BAC of .10, a person's "glare recovery" can be affected, meaning that nighttime driving is more difficult. At a BAC between .10 and .15, a person may have slurred speech and may stagger while walking. Kennedy testified that intoxication slows everything down for the impaired person, including that person's ability to recognize there might be a problem and react to it. Muscle reactions and perception are slowed. Kennedy testified an individual's BAC decreases at the rate of elimination of .01 to .02 grams per hour.

         Testifying as an accident reconstruction expert, Officer Ted Walters, who was part of the Fatal Crash team at the time of the offense, testified about the physical characteristics of the accident and his involvement in the crash investigation. Walters acknowledged he could not know precisely when Costello's wheelchair "entered into [Rich's] lane of travel." However, based on the reconstruction analysis he performed, he determined Costello would have been facing "southbound" at the time of impact and that the front driver's side of Rich's vehicle impacted the right side of Costello's wheelchair. Walters provided photographs of the wheelchair and Rich's car lined up against one another as they would have been at the time of impact, illustrating that the wheelchair was perpendicular to the car. Walters testified there were three streetlights in the area of the accident and lights on the trailer park sign.

         Forensic toxicologist Dr. Alphonse Poklis testified as a defense expert regarding the significance of Costello's BAC, which was .22 when tested at 3:10 a.m. that night. Poklis stated Costello was "severely intoxicated" and explained how he would have been "severely impaired by alcohol at a [BAC level of ] .22."

         In finding Rich guilty of DUI maiming, the trial court held:

On the count of driving under the influence, reckless, where the victim is permanently impaired, the court finds the defendant guilty. The court believes her conduct was gross, wanton, and culpable such as to show a disregard for human life.
In addition to the alcohol, the other factors that contributed to that gross, wanton, and culpable finding were sleep deprivation, were the distracted [sic], and failure to maintain a proper lookout. In and of itself the act of asking for a ...

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