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Present:  Carrico, C.J., Compton, Stephenson, Whiting,1 Lacy, Hassell, and Keenan, JJ.


JETER RAY BARRETT

v.  Record No. 941711 OPINION BY JUSTICE HENRY H. WHITING
                                        September 15, 1995

COMMONWEALTH OF VIRGINIA


FROM THE COURT OF APPEALS OF VIRGINIA

Jeter Ray Barrett appeals his conviction for operating a motor vehicle while under the influence of intoxicants (DUI).  The dispositive issue is the admissibility of evidence of Barrett's intoxication discovered during a brief police stop to investigate whether Barrett's vehicle was malfunctioning.
State Trooper J.R. Lyons testified that while he was travelling west on Route 360 in Northumberland County at 9:20 p.m. on October 2, 1991, he noticed a pickup truck occupied by a driver and two passengers stopped in a yard off the east lane of the highway.  After continuing west for about one-half mile, Lyons turned around and went back to investigate whether the pickup truck had broken down.
Upon returning to the scene, Lyons observed the pickup truck moving with its wheels partially on the shoulder of the road and partially in the private yard, which "seemed odd" to Lyons since the driver could have "pulled onto the roadway."  As Lyons approached the rear of the pickup truck, he activated the cruiser's flashing lights to stop the pickup truck "only to see whether there was a problem."
    1Justice Whiting prepared the opinion in this case prior to the effective date of his retirement on August 12, 1995, and the Court subsequently adopted the opinion.
    2The Fourth Amendment to the United States Constitution provides in pertinent part that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."
Both vehicles stopped.  As Lyons walked up to the pickup truck, he smelled a strong odor of alcohol "on or about the person of Barrett," who was driving the pickup truck.  Barrett admitted that he had been drinking.  After Barrett performed three field sobriety tests "very poorly," and a roadside breathalizer test indicated that Barrett was intoxicated, Lyons arrested him on a DUI charge.  Shortly thereafter, a blood test was administered to Barrett, which indicated that he had a blood alcohol content of 0.12% by weight by volume.
Later ascertaining that Barrett had two prior DUI convictions in the ten years preceding his arrest on this charge, the Commonwealth amended the arrest warrant to reflect that fact.  Code

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