[Posted February 16, 2010] Today produces some very interesting developments out of the Court of Appeals. The court grants an eminently foreseeable petition for en banc rehearing in Farmer v. Commonwealth as a result of the US Supreme Court’s recent remand in Briscoe v. Virginia. The order granting rehearing suspends briefing until the SCV acts on the remand in Briscoe. It also releases two published opinions, one short and to the point and the other far more controversial.

Criminal law
Let’s start with the short one: The appellant in Ray v. Commonwealth made a very common preservation mistake in the trial court, and tries to salvage the case with a creative argument. The issue is a witness whose testimony was wholly excluded. In order for the appellate court to review that ruling, it needs to know what the excluded testimony would have been; the usual course is for counsel to recite into the record what the testimony would have been. Ray neglected to do that, and based on a long line of decisions, he’s out of luck.

But he takes a creative approach to keep the issue alive. He contends that the trial court’s error was structural, not mere trial error. Structural error is something that affects the “framework” of the trial. For example, a denial of the right to counsel in a criminal case pervades the trial and invalidates the result, regardless of whether an appellate court thinks the defendant is actually guilty. The same thing goes for a case in which the trial judge is demonstrably not impartial. For that reason, appellate courts don’t engage in harmless-error analysis when it they find structural error; they just reverse.

But today the CAV panel decides that the admission or exclusion of evidence doesn’t rise to the level of structural error. The court cites decisions from elsewhere, and notes that complying with the preservation requirement is simple: You just proffer the testimony. This isn’t an instance of denying a party his fundamental ability to mount a defense; it’s just admission of evidence. The court accordingly finds that the claimed error is at most trial error, so the failure to make a proffer results in the affirmance of the convictions.

And that brings us to Roseborough v. Commonwealth, today’s appellate free-for-all that encompasses implied consent, waiver, and the evolving right-for-the-wrong-reason doctrine. It’s a 6-5 decision, and that kind of result just begs for further appellate scrutiny.

As for the merits? Well, let’s start by paraphrasing Art Linkletter: Drunk drivers say the darnedest things. This one came right out and volunteered to take a breath test, before the investigating officer even got around to mentioning it or the implied-consent statute. Alas, he fell victim to the ancient Greek sin of hubris; when the readout came back at .09, he was in trouble.

As I have already broadly hinted to you, the analysis of this case is nowhere near as straightforward as you might expect from that short factual introduction. The key elements I left out are (1) the driver was found, shortly after a minor accident, by a private security guard; (2) a police officer didn’t arrive until 30 minutes later; and (3) the site of the accident was a private road in a gated apartment complex. Experienced DUI lawyers will immediately recognize that this situation is just pregnant with troublesome issues.

Let’s start with the implied-consent statute. That only applies when one drives upon the highways of the Commonwealth. Is a private road that’s not generally open to the public a highway? Almost certainly not. And DUI is a misdemeanor, so in order for there to be a valid arrest (which is another predicate for implied consent), the offense had to take place in the officer’s presence. That certainly didn’t happen here.

At trial, the prosecution offered the officer’s certificate into evidence, arguing that the implied-consent statute applied to these facts anyway. The defense objected, claiming that the document wasn’t admissible under the statute. The trial court ruled that the statute applied, admitted the certificate, and convicted the driver.

On appeal, the Commonwealth again defended the admission of the certificate upon the same grounds – that is, that the statute applied to these facts. The driver’s lawyer sensibly responded with a host of reasons why it didn’t. A divided panel of the CAV affirmed the conviction, but the court granted the driver’s petition for en banc review.

The CAV panel majority affirmed based on a completely different theory of admissibility than the one the Commonwealth had employed. It found that the driver’s voluntary consent to take the breath test made application of the implied-consent statute unnecessary. That statute, the reasoning goes, is only needed for securing admission of evidence against the defendant’s wishes. Here, the driver invited the officer to measure the alcohol level in his breath, so all the procedural requirements were immaterial; the police officer had essentially been handed the key evidence in the case by the defendant without any compulsion whatsoever.

A bare majority of the Court of Appeals rules today that this reasoning is the correct line of analysis. It assumes without deciding that the officer had no right to make a warrantless arrest, but finds that the voluntary tender of the breath sample for testing meant that the evidence was properly admitted.

Five members of the court beg to differ. They find this application of the right-for-the-wrong-reason rule to be wholly inappropriate. The dissent notes that additional factfinding would be necessary for the appellate court to apply this new approach, under the Supreme Court’s newest decision in Whitehead v. Commonwealth. They reject the majority’s findings of waiver, because they see the majority’s insistence on hyper-technical objections to be far too narrow.

I’m going to analogize this decision to the field of literature. If all you want to read are light, breezy novels that are suitable for lying on a warm beach (I know that sounds pretty good right now, with the temperature in the 30’s across most of Virginia), then this opinion isn’t for you. Following the several battle lines takes some effort, and maybe a flow chart in some instances. If you’re willing to invest the time to sift through these arguments, you will find the legal issues fascinating, and it will make you a better trial lawyer in the process. (As with great literature, you’ll get out of it what you put into the effort of reading.)

Despite the fact that this precise fact pattern is fairly unlikely to recur often, today’s opinion is very important, for several reasons. First, it’s an en banc decision, and thus will be afforded more weight by future panels of the court than a mere panel decision would receive. Second, it’s the court’s latest take on what I described above as an evolving legal issue. Defining the boundary between those cases where an appellate court will find waiver by an appellee, and the cases where the court will affirm for a different reason, is a very tricky proposition. Here is a decision that takes the most recent right-for-the-wrong-reason caselaw and expands upon it (incorrectly, if you agree with the dissent).