Ciro Antonio Ferrufino v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
CIRO ANTONIO FERRUFINO
MEMORANDUM OPINION* BY
v. 	Record 	No. 1930-98-4 	JUDGE CHARLES H. DUFF
NOVEMBER 9, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
Jeffrey B. Rice for appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General;
Virginia B. Theisen, Assistant Attorney
General, on brief), for appellee.
Ciro Antonio Ferrufino was convicted in a bench trial of
driving while intoxicated, a third offense within ten years. 	On
appeal, appellant argues that he was unlawfully arrested and
that the trial court erred in admitting the certificate of
analysis and denying his motion to strike the evidence.
The statement of facts and amendment thereto reflect that
on November 10, 1997, Deputy DiBenedetto was responding to a
residence when he observed appellant's truck, which was
partially off the road and stuck in mud up to its axles.
DiBenedetto encountered appellant at the residence and, after
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

questioning appellant and administering some field sobriety
tests, arrested appellant for driving while intoxicated.
DiBenedetto subsequently administered a breath test to
appellant, which showed .21 grams of alcohol per 210 liters of
breath. 	The test results were admitted into evidence.
The statement of facts notes that after the Commonwealth
rested,
[t]he Court denied the defendant's motion to
strike, which was based on the assertion
that Deputy DiBenedetto had no authority to
arrest Mr. Ferrufino because the arrest for
a misdemeanor committed out of the presence
of an officer requires a warrant. 	The Court
ruled that pursuant to Leveroni v. County of
Arlington [18 Va. App. 626, 445 S.E.2d 723
(1994)], the facts of this case permitted a
warrantless arrest as authorized in
§ 19.2-81, Code of Virginia.
Appellant renewed his motion to strike after presenting
evidence.
The record does not reflect that appellant objected to the
certificate of analysis when it was admitted. 	See Lee v. Lee,
12 Va. App. 512, 516-17, 404 S.E.2d 736, 738-39 (1991) (en banc)
(holding that the appellant has the burden of presenting a
sufficient record to establish that an issue was properly
preserved for appeal). 	"To be timely, an objection must be made
when the occasion arises--at the time the evidence is offered or
the statement made." 	Marlowe v. Commonwealth, 2 Va. App. 619,
621, 347 S.E.2d 167, 168 (1986). 	Furthermore, "[a] litigant may
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not, in a motion to strike, raise for the first time a question
of admissibility of evidence." 	Woodson v. Commonwealth, 211 Va.
285, 288, 176 S.E.2d 818, 821 (1970).
Appellant waived his objection to the admissibility of the
certificate of analysis when he did not object to it when it was
admitted into evidence. 	Moreover, even if we assume appellant
preserved his challenge to the admissibility of the certificate
of analysis, his argument that there was no "accident" fails on
the merits.
This Court has noted that the term
"accident" means "an event occurring by
chance or from unknown causes," or "an
unfortunate event" and that "there is
nothing inherent in the meaning of the word
. . . that suggests that it applies only
when a vehicle strikes or collides with a
person or property."
Leveroni, 18 Va. App. at 627, 445 S.E.2d at 724 (quoting Smith
v. Commonwealth, 8 Va. App. 109, 114, 379 S.E.2d 374, 377
(1989)).
The record reflects that appellant's vehicle went far
enough off the paved roadway to become mired in mud up to its
axles. 	This constituted an "accident" for purposes of Code
§ 19.2-81. 	Accordingly, the trial court did not err when it
ruled that an accident occurred and denied appellant's motion to
strike.
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Appellant also contends that, because he was one hundred
yards away from his vehicle at the time he was arrested, he was
not arrested at the "scene" of the accident. 	The statement of
facts does not reflect, however, that appellant made this
specific argument to the trial court during his motion to
strike. 	Accordingly, we will not address this issue for the
first time on appeal. 	See Ohree v. Commonwealth, 26 Va. App.
299, 308, 494 S.E.2d 484, 488 (1998) (this Court will not
consider an argument on appeal that was not presented to the
trial court).
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed.
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