THE CIRCUIT COURT OF BEDFORD COUNTY James W. Updike, Jr.,
B. Padgett (Dirk Padgett Law PLLC, on brief), for appellant.
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
BENNETT MALVEAUX JUDGE
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. 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.For the reasons discussed below, we affirm
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
Accident and Investigation
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.
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."
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.
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
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.
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.
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.
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.
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 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.
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