COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Baker, Benton, Coleman, 

 Willis, Elder, Bray, Fitzpatrick and Overton 

Argued at Richmond, Virginia 

SCOTT ALLEN CHARLES 

 OPINION BY 

v. Record No. 2180-94-2 JUDGE LARRY G. ELDER 

 SEPTEMBER 10, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF AMELIA COUNTY 

Thomas V. Warren, Judge 

 G. Barton Chucker (Chucker & Reibach, on 

brief), for appellant. 

 Steven A. Witmer, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Scott Allen Charles (appellant) appeals his conviction for 

operating a motor vehicle after illegally consuming alcohol under 

the age of twenty-one, in violation of Code § 18.2-266.1. 

Appellant contends: (1) the trial court erred in finding that 

his blood alcohol test, administered one hour after his arrest, 

established a presumption of his blood alcohol content when he 

was operating his motor vehicle; (2) the trial court improperly 

denied his proffer of evidence meant to explain why he performed 

poorly on field sobriety tests; and (3) the General Assembly's 

use of the words "illegally consuming alcohol" in Code 

§ 18.2-266.1(A) required the Commonwealth to prove the source of 

the alcohol he consumed. Because the trial court committed no 

error, we affirm appellant's conviction. 
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 I. 

 FACTS 

 On July 23, 1994, at 2:14 a.m., Deputy W. P. Jones of the 

Amelia County Sheriff's Office stopped a vehicle driven by 

appellant. The stop occurred at an administrative roadblock. 

Appellant admitted that he had consumed two beers and was under 

age twenty-one. Appellant did not state when he had consumed the 

alcohol or disclose the source of the alcohol he had obtained. 

Jones arrested appellant for operating a motor vehicle after 

illegally consuming alcohol under age twenty-one. Appellant did 

not pass the field sobriety tests administered by Jones. At 

least one hour after being arrested, appellant underwent a blood 

alcohol test. The Commonwealth introduced the certificate of 

analysis, which showed that appellant's blood alcohol level 

registered at .02 percent at the time the test was administered. 

 Appellant was tried in the Circuit Court of Amelia County on 

October 5, 1994, for violating Code § 18.2-266.1. Appellant 

argued that the Commonwealth had to introduce evidence that his 

blood alcohol level was .02 percent at the time he operated his 

vehicle. The trial court rejected this argument. The trial 

court also refused to allow appellant to proffer evidence as to 

why he failed his field sobriety tests, reasoning that such 

evidence was irrelevant in light of the statutory language. The 

trial court also ruled that the Commonwealth did not need to 

prove that the alcohol was consumed illegally. The trial court 
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found appellant guilty as charged. 

 II. 

PRESUMPTION OF ALCOHOL CONCENTRATION 

 Appellant argues that the trial court erred in applying a 

presumption that his blood alcohol level one hour after operating 

the vehicle was the same as when he operated the vehicle. We 

disagree. 

 Neither this Court nor the Supreme Court has addressed the 

issue of whether Code § 18.2-266.1 creates a rebuttable 

presumption that a defendant's blood alcohol content while 

driving was the same as indicated by the results of a 

subsequently administered test. However, based on Davis v. 

Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989), and its 

progeny, we hold that Code § 18.2-266.1 creates such a 

presumption. Code §§ 18.2-266.11 and 18.2-266(i),2 which contain 

 

 1 Code § 18.2-266.1(A) states: 

 It shall be unlawful for any person 

under the age of twenty-one to operate any 

motor vehicle after illegally consuming 

alcohol. Any such person with a blood 

alcohol concentration of 0.02 percent or more 

by weight by volume or 0.02 grams or more per 

210 liters of breath but less than 0.08 by 

weight by volume or less than 0.08 grams per 

210 liters of breath as indicated by a 

chemical test administered as provided in 

this article shall be in violation of this 

section. 

 2 Code § 18.2-266 states "[i]t shall be unlawful for any 

person to drive or operate any motor vehicle, engine or train (i) 

while such person has a blood alcohol concentration of 0.08 

percent or more . . . ." 
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similar language, each make it "unlawful" for a driver to operate 

a motor vehicle while the driver's blood alcohol content is at or 

above a certain level. In Davis, this Court held that Code 

§ 18.2-266(i) creates a rebuttable presumption "that the blood 

alcohol concentration while driving was the same as indicated by 

the results of the subsequent test." 8 Va. App. at 300, 381 

S.E.2d at 16. See also Lemond v. Commonwealth, 19 Va. App. 687, 

692, 454 S.E.2d 31, 34 (1995); Kehl v. Commonwealth, 15 Va. App. 

602, 605, 426 S.E.2d 127, 129 (1993). We hold that this logic 

applies with equal force to Code § 18.2-266.1.3

 III. 

PROFFER OF EVIDENCE 

 As this Court has stated in cases involving prosecutions 

under Code § 18.2-266(i), a defendant may rebut the presumption 

that the blood alcohol concentration measurement accurately 

reflected the defendant's blood alcohol concentration at the time 

of driving. Commonwealth v. Ayers, 17 Va. App. 401, 404, 437 

S.E.2d 580, 582 (1993); Lemond, 19 Va. App. at 693, 454 S.E.2d at 

 

 3 Appellant also contends that Code § 18.2-269, entitled, 

"Presumptions from alcohol content of blood," applies to Code 

§ 18.2-266(ii) but does not apply to Code § 18.2-266.1. While 

this assertion is accurate, it does not affect the issue at hand. 

 Code § 18.2-266(ii) punishes offenders who drive under the 

influence of alcohol and utilizes Code § 18.2-269's presumptions 

to prove intoxication. In contrast, Code § 18.2-266.1 does not 

concern itself with offenders who drive under the influence. 

Instead, Code § 18.2-266.1 punishes offenders whose blood alcohol 

content measures between .02 and .08 percent. Therefore, we hold 

that Code § 18.2-269's presumptions are irrelevant to proving a 

violation of Code § 18.2-266.1. 
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35. Thus, in cases involving prosecutions under Code 

§ 18.2-266.1, "[a] defendant . . . may introduce evidence to show 

that, despite his blood alcohol concentration of at least 0.10 

percent on a subsequently administered test, his blood alcohol 

concentration at the time of driving was less than 0.10 percent." 

Ayers, 17 Va. App. at 404, 437 S.E.2d at 582. A defendant "may 

challenge the test results by competent evidence, such as, for 

example, that he had not consumed enough alcohol in the relevant 

time to reach the level indicated by the chemical test results." 

Davis, 8 Va. App. at 300, 381 S.E.2d at 16. However, evidence 

tending to prove that the defendant was not under the influence, 

such as adequate performance on field sobriety tests, is 

irrelevant and inadmissible. Id. In this case, therefore, the 

trial court did not err in refusing to allow appellant to explain 

his physical condition and his poor performance on the field 

sobriety tests. 

 IV. 

PROOF OF "ILLEGAL CONSUMPTION" 

 For the reasons stated in Mejia v. Commonwealth, ___ Va. 

App. ___, ___ S.E.2d ___ (1996) (en banc), we hold that the trial 

court did not err in denying appellant's motion to strike the 

evidence, which was grounded on the Commonwealth's failure to 

prove that his consumption of alcohol was illegal. 

 Based on the foregoing, we affirm appellant's conviction. 

 Affirmed.
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Benton, J., dissenting. 

 For the reasons stated in my dissent to Davis v. 

Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989), I would hold 

that Code § 18.2-266.1 does not create a presumption "that the 

blood alcohol concentration while driving was the same as 

indicated by the results of the subsequent test." 8 Va. App. at 

300, 381 S.E.2d at 16. Until the General Assembly enacts a 

rebuttable presumption for Code § 18.2-266.1, "I find nothing in 

either the text or logic of [Code § 18.2-266.1] that leads me to 

conclude the General Assembly intended anything other than that 

guilt would be proved beyond a reasonable doubt according to the 

normal processes of human reasoning and experience." Id. at 303, 

381 S.E.2d at 17-18 (Benton, J., dissenting). 

 Because I do not believe Code § 18.2-266.1 creates a 

rebuttable presumption, I would find the trial judge erred in 

barring evidence of Charles' physical condition and performance 

on field sobriety tests. The Commonwealth administered the 

breathalyzer test an hour after the officer stopped Charles. 

During this one hour period, the level of Charles' intoxication 

may have fluctuated. Evidence of his physical condition at the 

time of the stop was probative of whether he operated the vehicle 

when his breath contained .02 grams or more of alcohol per 210 

liters of breath. Where the statute bars a person from operating 

a vehicle with a certain bodily alcohol content and the test is 

not performed until after that person ceases to operate the 
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vehicle, then evidence of the driver's physical condition may be 

probative of the driver's level of intoxication when operating 

the vehicle. Thus, I would also hold that the trial judge erred 

in refusing to admit the evidence of Charles' physical condition. 

 The statute does not create a rebuttable presumption regarding 

the scientifically measured alcohol level. 

 I dissent from Part IV for the reasons stated in my dissent 

to Mejia v. Commonwealth, Va. App. , S.E.2d 

(1996)(en banc). Code § 18.2-266.1(A) requires the Commonwealth 

to prove the accused "illegally consum[ed] alcohol." The 

Commonwealth introduced no evidence concerning the circumstances 

of Charles' consumption of alcohol. Therefore, the evidence was 

insufficient to support a conviction. 

 Accordingly, I would reverse Charles' conviction.