COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Clements and Senior Judge Fitzpatrick 

Argued at Richmond, Virginia 

JERRY EUGENE LAWRENCE 

 MEMORANDUM OPINION*

 BY 

v. Record No. 0658-06-4 JUDGE ROBERT P. FRANK 

 APRIL 10, 2007 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF RAPPAHANNOCK COUNTY 

J. Howe Brown, Jr., Judge Designate 

 Jay K. Wilk for appellant. 

 Virginia B. Theisen, Senior Assistant Attorney General (Robert F. 

McDonnell, Attorney General, on brief), for appellee. 

 Jerry Eugene Lawrence, appellant, was convicted, in a bench trial, of driving under the 

influence, in violation of Code § 18.2-266. On appeal, he contends: (1) Code §§ 18.2-269 and 

18.2-270 are unconstitutional because the statutes create a mandatory presumption, shifting the 

burden of persuasion to appellant; (2) Code § 18.2-270 creates a rebuttable presumption that 

relieves the Commonwealth of its obligation to prove beyond a reasonable doubt every fact 

necessary to increase punishment; and (3) the mandatory sentence under Code § 18.2-270 

violates appellant’s right to due process and his Fifth Amendment right to remain silent, 

violating United States v. Booker, 543 U.S. 220 (2005). 

 For the reasons stated, we affirm the conviction. 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication.
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BACKGROUND

 Appellant was arrested for driving under the influence, having registered a blood alcohol 

level of 0.25. He filed a motion to declare certain portions of Code §§ 18.2-269 and 18.2-270 

unconstitutional. The trial court denied the motion. 

 At trial, appellant pled not guilty but stipulated that “the [appellant] was then under the 

influence of alcohol while he was operating that motor vehicle on a public highway.” Appellant 

also stipulated his blood alcohol level was 0.25. The trial court then asked for additional 

evidence to prove the charge. The Commonwealth recited facts from the officer’s report, 

including a strong odor of alcohol, red and glassy eyes, slurred speech, and inability to stand. 

Further, the Commonwealth noted that appellant had been weaving “all over the road,” and could 

not understand “things that were read or told to him, or questions asked to him, he could not 

remember where he came from.” Appellant also was unable to properly complete the field 

sobriety tests. 

 This appeal follows. 

ANALYSIS

I. Constitutionality of Code § 18.2-269 

 Appellant first contends Code § 18.2-2691 is unconstitutional because the rebuttable 

presumption relieves the Commonwealth from proving each element of the offense and 

impermissibly shifts the burden of persuasion to appellant, requiring him to prove his innocence. 

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 Code § 18.2-269 creates a “rebuttable presumption:” 

(3) If there was at that time 0.08 percent or more by weight by 

volume of alcohol in the accused’s blood or 0.08 grams or more 

per 210 liters of the accused’s breath, it shall be presumed that the 

accused was under the influence of alcohol intoxicants at the time 

of the alleged offense. 
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 The Due Process Clause of the United States Constitution requires the prosecution to 

prove beyond a reasonable doubt every element necessary to establish the crime charged. In re 

Winship, 397 U.S. 358, 364 (1970). 

 Inferences and presumptions are a staple of our adversary system of factfinding. County 

Court of Ulster County v. Allen, 442 U.S. 140, 156 (1979). It is often necessary for the trier of 

fact to determine the existence of an element of the crime — that is, an “ultimate” or “elemental” 

fact — from the existence of one or more “evidentiary” or “basic” facts. Id. Inferences and 

presumptions must not, however, infringe upon constitutional guarantees. Tot v. United States, 

319 U.S. 463, 467 (1943). In other words, no evidentiary presumption may relieve the 

prosecution of its burden of persuasion beyond a reasonable doubt of every essential element of a 

crime. Francis v. Franklin, 471 U.S. 307, 313 (1985). 

“‘It is a well recognized principle of appellate review that constitutional questions should 

not be decided if the record permits final disposition of a cause on non-constitutional grounds.’” 

Luginbyhl v. Commonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) (en banc) (quoting 

Keller v. Denny, 232 Va. 512, 516, 352 S.E.2d 327, 329 (1987)). Similarly, “an appellate court 

decides cases ‘on the best and narrowest ground available.’” Id. (quoting Air Courier 

Conference v. Am. Postal Workers Union, 498 U.S. 517, 531 (1991) (Stevens, J., concurring)). 

In this case appellant asks us to find the presumption provision of Code § 18.2-269 

unconstitutional. Essentially, appellant complains that the trial court used Code § 18.2-269 to 

impermissibly presume that appellant was intoxicated at the time of driving. However, we need 

not consider whether the trial court applied the presumption unconstitutionally because appellant 

conceded at trial that he was “under the influence of alcohol while he was operating that motor 

vehicle on a public highway.” Based upon the agreed evidence, the trial court did not have to 

presume or infer from the BAC that appellant was intoxicated at the time of the offense; 
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appellant provided the court with that evidence by stipulating he was intoxicated while operating 

the automobile. Therefore, we need not consider whether the trial court improperly presumed, 

pursuant to Code § 18.2-269, that appellant “was under the influence of alcohol intoxicants at the 

time of the alleged offense.” See Code § 18.2-269. 

II. Constitutionality of Code § 18.2-2702

Appellant next argues that Code § 18.2-270 is unconstitutional because it creates a 

mandatory rebuttable presumption that subjects the accused to a mandatory minimum sentence if 

his blood level is greater than 0.20. Appellant contends that Code § 18.2-270, when read 

together with Code § 18.2-269, relieved the Commonwealth of proving every element of the 

offense beyond a reasonable doubt. 

It must be noted that contrary to appellant’s contention, Code § 18.2-270 creates no 

presumption. It simply establishes a mandatory minimum penalty of 10 days incarceration if the 

individual’s blood alcohol level exceeds 0.20. Appellant stipulated at trial that his blood alcohol 

level was 0.25. No additional proof was necessary. The trial court simply applied the stipulated 

evidence to the mandate of Code § 18.2-270. No burden, whether it was the burden of proof or 

even the burden of producing evidence, was shifted to appellant. Thus, we reject appellant’s 

argument that Code § 18.2-270 is unconstitutional because it shifts the burden of proof. 

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 Code § 18.2-270 reads in relevant part: 

A. Except as otherwise provided herein, any person violating any 

provision of § 18.2-266 shall be guilty of a Class 1 misdemeanor 

with a mandatory minimum fine of $250. If the person’s blood 

alcohol level as indicated by the chemical test administered as 

provided in this article was at least 0.15, but not more than 0.20, he 

shall be confined in jail for an additional mandatory minimum 

period of five days or, if the level was more than 0.20, for an 

additional mandatory minimum period of 10 days. 
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III. Code § 18.2-270 and United States v. Booker

 Citing United States v. Booker, 543 U.S. 220 (2005), appellant next argues that 

Code § 18.2-270 unconstitutionally relieves the Commonwealth of proving additional facts that 

would increase the punishment of driving while under the influence of alcohol to a mandatory 

minimum jail sentence. Appellant misreads Booker. 

 The issue before the Supreme Court in Booker was whether a trial judge, and not the jury, 

could determine a fact that increased the term of imprisonment. The Court stated, “Any fact 

(other than a prior conviction) which is necessary to support a sentence exceeding the maximum 

authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the 

defendant or proved to a jury beyond a reasonable doubt.” Booker, 543 U.S. at 244. Thus, 

Booker prohibits judges from increasing punishment beyond the limits of a sentence that could 

have lawfully been imposed on the facts found by the jury or admitted by the accused. Id. 

 Here, appellant stipulated his blood alcohol level was 0.25. Had appellant not so 

stipulated, the Commonwealth would have had to prove beyond a reasonable doubt that 

appellant’s blood level was 0.20 or greater. Clearly, the infirmities enunciated in Booker are not 

present in Code § 18.2-270. 

 Here, in a bench trial, the trial court was the fact finder. We conclude that Code 

§ 18.2-270 suffers none of the constitutional challenges appellant asserts. 

IV. Fifth Amendment Issue 

 Appellant next contends that because Code §§ 18.2-269 and 18.2-270 require him to 

produce evidence in order to rebut the presumption, his right to remain silent, as insured by the 

Fifth Amendment, was violated. He failed, however, to present this argument to the trial court. 

Appellant neither raised this particular issue in his written Motion to Declare Portions of Virginia 

Code §§ 18.2-266 and 18.2-270 Unconstitutional, nor did he raise it during the hearing on the 
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motion or during the trial. Therefore, we will not consider it for the first time on appeal. See

Rule 5A:18. 

Although Rule 5A:18 allows exceptions for good cause or 

to meet the ends of justice, appellant does not argue that we should 

invoke these exceptions. See e.g., Redman v. Commonwealth, 25 

Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“In order to avail 

oneself of the exception, a defendant must affirmatively show that a 

miscarriage of justice has occurred, not that a miscarriage might 

have occurred.” (emphasis added)). We will not consider, sua 

sponte, a “miscarriage of justice” argument under Rule 5A:18. 

Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc). 

Accordingly, Rule 5A:18 bars our consideration of this issue on appeal, as this issue is 

procedurally defaulted. 

CONCLUSION

For the reasons stated, we find that the trial court did not err in refusing to declare 

portions of Code §§ 18.2-269 and 18.2-270 unconstitutional. Accordingly, we affirm the 

conviction. 

Affirmed.