COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Overton 

Argued at Alexandria, Virginia 

KIMBERLY STACY, S/K/A 

 KIMBERLY DAWN STACY 

 OPINION BY 

v. Record No. 0923-95-4 JUDGE SAM W. COLEMAN III 

 MAY 14, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Paul F. Sheridan, Judge 

 Bruce M. Blanchard (Odin, Feldman & 

Pittleman, P.C., on briefs), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Kimberly Dawn Stacy appeals her conviction for driving while 

intoxicated in violation of Code § 18.2-266. Stacy contends that 

the trial court erred by admitting the results of an alka-sensor 

test at the pretrial suppression hearing to determine whether the 

police officer had probable cause to make an arrest, and that 

absent the alka-sensor test results, the evidence was 

insufficient to support a finding that the officer had probable 

cause to arrest her. Consequently, Stacy asserts, the blood 

alcohol test taken following her illegal arrest should have been 

excluded at trial and, therefore, the evidence is insufficient to 

sustain her conviction. We hold that the trial court did not err 

by admitting the alka-sensor test result for the purpose of 

determining that the officer had probable cause to arrest Stacy. 

 Accordingly, we hold that the results of the blood test were 
- 2 - 

properly admitted at trial and affirm the defendant's conviction. 

 At approximately 2:10 a.m. on July 24, 1994, Corporal 

Darrell Abate of the Arlington County Police Department observed 

the defendant driving eastbound on Interstate 66. Officer Abate 

twice witnessed the two right tires of the defendant's vehicle 

cross over the white line separating the travel lane from the 

paved shoulder within a distance of approximately one-half mile. 

 As a result, Abate activated his emergency equipment and stopped 

the defendant. 

 Upon approaching the vehicle, Officer Abate identified the 

defendant as the driver and asked for her operator's license and 

registration, which she produced without difficulty. He detected 

an odor of alcohol and noticed that the defendant's eyes were 

bloodshot. When asked whether she had been drinking, the 

defendant replied that she had consumed two beers and two glasses 

of wine over the course of the evening and that she had taken the 

last drink approximately two hours before being stopped. Officer 

Abate then asked the defendant to perform field sobriety tests, 

and the defendant exited her vehicle without difficulty. 

 The defendant first performed a thirty second leg raise, 

which involved lifting one leg approximately six inches off the 

ground with her arms at her side while counting aloud from zero 

to thirty. The defendant performed this test as instructed 

without lowering her foot, raising her arms for balance, or 

counting improperly. 
- 3 - 

 Officer Abate next instructed the defendant to walk fifteen 

steps, touching her feet heel to toe, on an imaginary straight 

line while counting the steps out loud, and then to turn and walk 

ten steps back in the same manner. The defendant walked ten 

steps in the manner instructed and then turned and walked ten 

steps again. Except for walking ten steps away instead of 

fifteen, she performed the test well. 

 Officer Abate offered the defendant the opportunity to take 

a roadside alka-sensor test and informed her that the test 

results could not be used as evidence against her in court. She 

consented to the alka-sensor test, which registered positive for 

alcohol, and Abate arrested her for driving while intoxicated. 

Officer Abate informed the defendant of her rights under the 

Virginia Implied Consent Law, and she elected to take a blood 

test. The certificate of blood alcohol analysis filed with the 

trial court indicated that the defendant's blood alcohol content 

was .13 percent by weight by volume. 

 Prior to trial, the defendant filed a Motion to 

Dismiss/Motion to Suppress the blood test results on the ground 

that Officer Abate did not have probable cause to arrest her. At 

the suppression hearing, Abate recounted his observations of the 

defendant's driving, her performance of the field sobriety tests 

before being arrested, and he also testified, over the 

defendant's objection, to the results of the roadside alka-sensor 

test, which the trial court admitted. The trial court found that 
- 4 - 

Officer Abate had probable cause to arrest the defendant. 

 Code § 18.2-267 provides that any person suspected of 

driving while intoxicated is "entitled, if such equipment is 

available, to have his breath analyzed to determine the probable 

alcoholic content of his blood." If the breath analysis reveals 

that alcohol is present in the suspect's blood, the police 

officer may arrest the suspect, but the results of the analysis 

are not admissible at trial to prove guilt. 

 Code § 18.2-267 provides, in relevant part, as follows: 

 D. Whenever the breath sample analysis 

indicates that alcohol is present in the 

person's blood, the officer may charge the 

person with [driving while intoxicated] 

. . . . 

 E. The results of the breath analysis shall 

not be admitted into evidence in any 

prosecution [for driving while intoxicated], 

the purpose of this section being to permit a 

preliminary analysis of the alcoholic content 

of the blood of a person suspected of [having 

driven while intoxicated]. 

The defendant contends that the term "prosecution" includes a 

pretrial suppression hearing and, therefore, the trial court 

violated Code § 18.2-267(E) by admitting the results of the 

alka-sensor test in determining whether Officer Abate had 

probable cause to make an arrest. 

 The pretrial suppression hearing was conducted to determine 

whether Officer Abate had probable cause to arrest the defendant. 

 "[P]robable cause exists when the facts and circumstances within 

the officer's knowledge, and of which he has reasonably 
- 5 - 

trustworthy information, alone are sufficient to warrant a person 

of reasonable caution to believe that an offense has been or is 

being committed." Jones v. Commonwealth, 18 Va. App. 229, 231, 

443 S.E.2d 189, 190 (1994) (quoting Taylor v. Commonwealth, 222 

Va. 816, 820, 284 S.E.2d 833, 836 (1981), cert. denied, 456 U.S. 

906, 102 S. Ct. 1753, 72 L.Ed.2d 163 (1982)). By providing in 

Code § 18.2-267 that the officer may charge an individual with 

driving while intoxicated on the basis of the results of a 

preliminary breath test, the legislature has recognized that this 

test is reasonably trustworthy to show that a person has consumed 

alcohol for purposes of determining whether probable cause exists 

to make an arrest. See Code § 18.2-267(D); Wohlford v. 

Commonwealth, 3 Va. App. 467, 471, 351 S.E.2d 47, 49 (1986) ("By 

providing an immediate chemical test at the scene, the suspected 

driver and the suspecting officer are provided an impartial 

arbitrator and whether the suspicion of driving under the 

influence is well grounded is made clear for the benefit of 

both"). 

 The defendant contends, however, that because Code 

§ 18.2-267(E) provides that the preliminary alka-sensor results 

cannot be "admitted into evidence in any prosecution," the 

statute cannot be interpreted, despite its express provision 

allowing for a person to be charged, to sanction the use of a 

preliminary breath test in determining probable cause to arrest. 

 (Emphasis added). The defendant asserts that subsection D was 
- 6 - 

enacted merely to afford the arresting officer with immunity from 

potential civil claims for false arrest. 

 We find that the defendant's emphasis on the term 

"prosecution" in subsection E, providing that the alka-sensor 

results shall not be admissible, ignores the obvious purpose of 

subsection D and the fundamental rule of statutory construction 

"that a statute must be construed from its four corners and not 

by singling out particular words or phrases." Smith v. 

Commonwealth, 8 Va. App. 109, 113, 379 S.E.2d 374, 376 (1989). 

The clear purpose of subsection D, which authorizes the officer 

to charge a suspect whose preliminary breath test registers 

positive for the consumption of alcohol, is to recognize that the 

test is sufficiently reliable to prove that a person has consumed 

alcohol and that the fact of consumption may furnish reason to 

believe that a person is intoxicated. Code § 18.2-267 contains 

no language that supports the defendant's interpretation of it as 

a grant of civil immunity. Her construction of Code § 18.2-267 

would replace the "plain, obvious, and rational meaning of [the] 

statute" with a strained construction that would defeat the 

obvious purpose of the statute. Turner v. Commonwealth, 226 Va. 

456, 459, 309 S.E.2d 337, 338 (1983). 

 Although the Supreme Court defined "prosecution" broadly in 

Sigmon v. Commonwealth, 200 Va. 258, 105 S.E.2d 171 (1958), that 

case dealt with a statute that barred duplicate "prosecutions" 

for the same offense. The statute also included the term 
- 7 - 

"proceeding," which led the Court to state that "[w]hile [the 

terms] embrace in some respects the same definition, they are not 

synonymous." Id. at 266, 105 S.E.2d at 177. Although the Court 

stated that "'[p]roceeding' has a broader meaning" than the term 

"prosecution," the Court held that for purposes of the statute at 

issue "'prosecution' means the institution and carrying on of a 

suit or proceeding to obtain or enforce some right or the process 

of trying formal charges against an offender before a legal 

tribunal." Id. at 267, 105 S.E.2d at 178. 

 By contrast, in Livingston v. Commonwealth, 21 Va. App. 621, 

466 S.E.2d 757 (1996), we construed the term "prosecution" and 

similar terminology in Code § 19.2-271.2, which defines the 

proceedings in which interspousal immunity applies. We held that 

the terms "in the case of a prosecution," "criminal cases," and 

"prosecution for a criminal case" contemplate adversarial 

proceedings, including a preliminary hearing, but do not include 

the investigatory stages of a crime. Id. at 627, 466 S.E.2d at 

760. 

 It is manifest from the purposes of the statutes under 

consideration in Sigmon and Livingston, as well as the manner in 

which the pertinent terminology was employed in the statutes at 

issue, that an expansive definition of "prosecution" was 

intended. Thus, it is clear that neither case, viewed in the 

context in which they were decided, purports to establish a 

universal definition of the term "prosecution." 
- 8 - 

 We hold that "prosecution," as it is used in Code 

§ 18.2-267, does not include a pretrial suppression hearing to 

determine the legality of the arrest; "prosecution" as 

contemplated in this statute is limited to the proceedings 

devoted to "determining the guilt or innocence of a person 

charged with crime." Black's Law Dictionary 1221 (6th ed. 1990). 

 This interpretation is consistent with the obvious purpose of 

Code §§ 18.2-267(D) and (E), which is "to permit a preliminary 

analysis of the alcoholic content of the blood of a person 

suspected of [driving while intoxicated]" and to authorize the 

officer to charge an accused who tests positive, but to not allow 

the test results to be admitted as evidence of guilt. The 

requirement that the officer must advise the suspect that the 

alka-sensor results cannot be "admitted into evidence in any 

prosecution" merely informs the person that the test results will 

not be considered in determining guilt or innocence. Therefore, 

the trial court did not err by admitting the results of the 

alka-sensor test at the pretrial hearing to determine probable 

cause to arrest, which is the sole purpose for administering the 

test. Because the alka-sensor test results were properly 

considered along with the other evidence of intoxication to 

establish probable cause to arrest, the blood test was not 

illegally administered and, therefore, the evidence was 

sufficient to sustain the conviction. 

Affirmed.