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Aponte v. Commonwealth

Court of Appeals of Virginia

October 10, 2017



          Dirk B. Padgett (Dirk Padgett Law PLLC, on brief), for appellant.

          Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Chafin, O'Brien and Malveaux Argued at Salem, Virginia



         Emily Lynn Aponte ("appellant") appeals her convictions of involuntary manslaughter, in violation of Code § 18.2-36.1, driving while intoxicated (second offense within five to ten years) with a child in her vehicle, in violation of Code §§ 18.2-266 and -270, and maiming of another resulting from driving while intoxicated, in violation of Code § 18.2-51.4.[1] On appeal, she contends the trial court erred when it denied her motion to suppress the certificate of analysis containing her blood test results, refused to allow her to introduce data evidence at trial, and denied her motion to strike as the Commonwealth failed to prove appellant was intoxicated at the time of her accident.[2]For the reasons discussed below, we affirm her convictions.

         I. BACKGROUND

         "In accordance with familiar principles of appellate review, the facts [are] stated in the light most favorable to the Commonwealth, the prevailing party at trial." Scott v. Commonwealth, 292 Va. 380, 381, 789 S.E.2d 608, 608 (2016).

         The Accident and Investigation

         While driving on the afternoon of April 26, 2014, appellant crossed the center line of a two-lane highway and collided head on with a van. The van's driver suffered injuries which impair his ability to walk and limit his work capacities. Appellant's six-year-old son, E.A., was a passenger in the back seat of her car. E.A. was gravely injured and died several hours after the accident.

         Connie Letchford was sitting on her porch that day when, at about 3:00 p.m., she heard "a great big boom." She walked around the side of her home and looked toward the nearby highway, where she saw that a van and car had collided. She ran to the scene, opened appellant's door, asked her if she was okay, and told her she was going to call 911. Appellant said, "please don't. . . . [P]lease don't call. I've been drinking."

         Appellant got out of her car and tried to phone her husband. When Letchford completed her call to 911, she turned around and saw appellant holding three or four cans of beer. Letchford asked appellant what she was doing, and appellant said, "I have to get rid of this" and threw the cans into a wooded area near the road.

         Connie Letchford's daughter-in-law, Cheryl Letchford, was with her on the porch that afternoon and also heard the collision. When Cheryl approached the accident scene, appellant "was begging Connie not to call 911 because she would be in so much trouble." She noted that when appellant got out of her car there was a strong odor of beer on her breath. Cheryl Letchford also saw appellant throw away several cans of beer.

         Senior Trooper Gordon Musgrove of the Virginia State Police arrived at the scene shortly after 3:00 p.m. Several emergency vehicles were already present, and Musgrove found the scene "fairly hectic" to observe and investigate. He asked appellant for her license and registration and "asked her real quickly" what had happened, but "didn't get that close" to appellant. Appellant told Musgrove that E.A. had asked her a question, and when she looked back to answer him, the accident occurred. Appellant's husband arrived at the scene, E.A. was airlifted to a Roanoke hospital, and appellant and her husband asked if they could leave. At approximately 3:45 p.m., Musgrove told them to drive to the hospital and that he would later meet them there.

         Shortly thereafter, Musgrove spoke with two other troopers who had talked with Connie Letchford. Apprised of their conversation, Musgrove walked to the wooded area and saw three cans of beer. Musgrove also spoke with Letchford and heard her account of appellant's conduct and statements. Prior to that time, Musgrove had not been concerned that alcohol might have played a role in the accident.

         After completing his work as lead investigator of the accident, Musgrove left the scene shortly after 5:20 p.m. and arrived at the hospital just before 6:00 p.m. He went to the pediatric intensive care unit and spoke briefly with E.A.'s doctor before speaking again with appellant at about 6:15 p.m. Musgrove could detect a slight odor of alcohol in the room where he and appellant spoke. Appellant repeated her account of the accident and denied having anything to drink after the crash. She stated her last drink had occurred at about 3:00 a.m. or 4:00 a.m.

         Musgrove, giving appellant "the benefit of the doubt" that 14 or 15 hours had passed since her last drink, offered appellant a breath test to see if any alcohol remained in her system. At about 6:23 p.m., appellant's breath test returned a blood alcohol content ("BAC") result of .130. Based on appellant's account of her conduct, the result seemed high to Musgrove. Appellant's husband was present, and he asked Musgrove if his Alco-Sensor was working properly. Another trooper, who was investigating a different accident, was in the emergency room at that time and Musgrove asked if he would administer a second test using that trooper's Alco-Sensor. At approximately 6:30 p.m., that breath test returned a result of .109 BAC.

         Musgrove asked appellant what she had to drink the night before. Appellant said she had consumed part of a mixed drink and some beer-"a lot more than normal"-and that, as a consequence, she had spent the previous night at the home of her mother's friend. At that point, after approximately 30 minutes of conversation with appellant, Musgrove contacted the Commonwealth's attorney for guidance. Since more than three hours had elapsed since the accident, the statutory window for implied consent for a blood draw had passed[3] and the Commonwealth's attorney advised Musgrove to see if appellant would consent to give a blood sample. He also advised the trooper that if appellant did not consent, there was sufficient probable cause for Musgrove to take her before a magistrate and obtain a search warrant for her blood.

         Musgrove told appellant she could voluntarily provide a blood sample, which would allow her to remain in the hospital and minimize her time away from her son, or they would have to go before a magistrate and obtain a search warrant. Appellant said she would provide a blood sample, and her blood was drawn at 7:15 p.m.

         Pre-Trial ...

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