Failed breath test equals DUI conviction

In Rappahannock County District Court Tuesday (June 5), Judge J. Gregory Ashwell pointed out to a young defendant in a DUI case that drivers in Virginia are not required to submit to field sobriety tests, including the roadside breathalyzer. If they do, however, the results can be damaging.

That was just before he found Heather Ann Dibble of Warrenton guilty of driving under the influence, sentenced her to 90 days in jail (suspending all of it) and fined her $500 (suspending $250). Dibble also lost her driving privileges for 12 months and must complete the VASAP alcohol prevention program.

Virginia State Trooper Brandon Johnson testified that he pulled Dibble over after dark on St. Patrick’s Day (May 17), after passing a vehicle on U.S. 211 near the Trading Post gun store which did that not disengage its high-beam head-

lights. He said he followed the vehicle for nearly two miles before making the stop at about 8:45 p.m., and said he witnessed Dibble “weaving within her own lane,” but never crossing the centerline or exceeding the speed limit.

After making the stop, Johnson said he asked Dibble to perform a series of sobriety tests. According to Johnson, Dibble passed tests of balance, walking, dexterity test and alphabet recitation with no signs of intoxication. After Dibble completed tests, he questioned her in his cruiser, which was when he said detected the odor of alcohol and said that the woman’s eyes were watery and red.

When Dibble said she’d had a few beers earlier in the day during a St. Patrick’s Day celebration at the Blue Rock Inn, and hadn’t eaten much that day, Johnson testified that he asked the woman to submit to a roadside breathalyzer test. Dibble allegedly consented to the breath test; her blood alcohol content was over the legal limit of .08. Johnson said that throughout the process, Dibble was polite, upfront and cooperative.

Dibble testified that after leaving the Blue Rock at about 4 p.m., she took a nap at her brother's house in Sperryville. About four hours later, when she was too tired to go back out with her brother and his friends, Dibble said she decided to instead drive home to Warrenton, feeling tired but not intoxicated. When she got back into cell phone range on U.S. 211 in Washington, Dibble said her first move was to text her boyfriend, which could account for what Johnson perceived as weaving within her lane.

"The prosecution's case puts into doubt whether or not she was intoxicated," said defense attorney Frank Reynolds, in closing arguments. "People fail to dim their lights all the time. The weaving was text-related. Miss Dibble passed all of her sobriety tests, and according to the trooper, couldn't have been more cooperative . . . If she'd have had a lawyer on that roadside, she wouldn't have done the [breathalyzer], and we wouldn't be here today."

Commonwealth’s Attorney Art Goff then told the court that based on the amount of alcohol that Dibble conceded she had consumed that day, and based on the lack of food she had eaten that day and the blood alcohol content recorded in the roadside breathalyzer, the woman’s ability to drive a motor vehicle was surely impaired.

“Back in the day, you’d walk out of here a free woman,” Ashwell said, before ruling on the case. He noted that there was more “sport” to prosecuting DUI cases in his days as a prosecutor, before the explicitly stated .08 blood-alcohol-level law was enacted. “And had you not taken that [breathalyzer] test, you’d have been with your boyfriend shortly after being pulled over, since you did so well in your field sobriety tests . . . But you aren’t nearly the worst case. I mean we have some people come before us that had been commode-hugging drunk, driving down the road.”

Also in district court

• Marcus Allen Blaha of Romney, W.Va., pleaded guilty to his second DUI, driving on a suspended license and eluding police, after reportedly driving his vehicle into a fence April 22. On the DUI charge, Blaha was sentenced to 120 days in jail (with 80 days suspended), fined $2,000 ($1,500 suspended) and will lose his license for three years. On the driving on suspended charge, Blaha was sentenced to 90 days in jail (with 80 days suspended) and fined $1,000 ($750 suspended). On the eluding charge, Blaha was sentenced to 180 days in jail (with 165 days suspended).

• After a preliminary hearing, Ashwell found sufficient evidence to send a rape charge against Phillip Matthew Held of Front Royal to the grand jury, which meets July 29. Held is charged with raping a woman Feb. 12 in her Chester Gap home after a night of drinking. The victim testified that she had known Held for about 10 years and that he was a “very close family friend.” According to the victim’s testimony, Held entered her room between 5 and 7 a.m. and raped the woman in her bed. The police were contacted the following morning.

• Amy Leigh Fincham of Washington pleaded guilty to trespassing and petty larceny and was sentenced to 365 days in jail (with 285 days suspended). She also owes $80 in restitution to Susan Cairns of Chester Gap and must complete 24 months of supervised probation. In exchange for the guilty pleas to petty larceny and trespassing, a total of six breaking and entering and grand larceny charges related to the case were dropped.

Fincham was a co-defendant with Hannah Besecker in a case this past winter. Besecker, of Front Royal, pleaded guilty Feb. 2 to three misdemeanors and a felony, after allegedly breaking and entering into Cairns’ home on three occasions between March 28 and April 5, 2011 – accompanied by Fincham. Goff said in court Feb. 2 that Besecker and Fincham entered Cairns’ house looking for jewelry to sell for prescription pills.

• William Jordan Thorn of Madison pleaded guilty to obstruction of justice without force, and was fined $1,000 (with $750 suspended) and given a 30day suspended jail sentence (contingent upon him completing 12 months of unsupervised probation on good behavior). A public intoxication charge against him was dropped. According to attorney Frank Reynolds, Thorn’s offense was a non-forceful obstruction of justice. Reynolds said that his client was a passenger in a vehicle that had been pulled over March 8 by Sheriff’s Deputy Lee Settle, and that he did not exit the vehicle when asked to do so.

• Julio A. Rodriguez-Perez of Winchester pleaded guilty to reckless driving and driving on a suspended license after being pulled over April 27 by Deputy Settle for driving 88 in 55-mph zone on Route 231 while passing two cars. Ashwell sentenced him to 30 days in jail (with 28 days suspended) and fined him $250 on the reckless driving charge, and (for driving on a suspended license) sentenced him to 30 days in jail (with 25 days suspended) and a 90-day license suspension.