Robert Elvin Ingram v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: September 16, 2003
• Docket: 2015023
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bumgardner and Retired Judge Brown* Argued at Salem, Virginia

ROBERT ELVIN INGRAM MEMORANDUM OPINION** BY v. Record No. 2015-02-3 JUDGE JAMES W. BENTON, JR. SEPTEMBER 16, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF WYTHE COUNTY J. Colin Campbell, Judge

Deborah Caldwell-Bono for appellant.

(Jerry W. Kilgore, Attorney General; H. Elizabeth Shaffer, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.

A police officer arrested Robert Elvin Ingram for driving

while intoxicated in violation of Code § 18.2-266. The sole issue

on appeal is whether the officer violated Code § 18.2-268.6 when

he did not allow Ingram to keep the form, which explained the

procedure for an independent analysis of his blood after Ingram

had read and signed the form. We hold that this action violated

the statute, and we reverse the conviction.

* Retired Judge J. Howe Brown, Jr., took part in the consideration of this case by designation pursuant to Code § 17.1-400.

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

Ingram filed a motion to suppress evidence and dismiss the

prosecution for the officer's failure to substantially comply with

Code § 18.2-268.6. The evidence at the hearing proved that

Virginia State Police Trooper Paul Savel saw a vehicle "weaving"

on an interstate highway. After the trooper stopped the vehicle

and approached it, he smelled a strong odor of alcohol about

Ingram, the driver. The trooper asked Ingram to perform sobriety

tests and arrested Ingram when he was unable to perform them

satisfactorily. The trooper later took Ingram to a hospital

where blood was drawn for a blood alcohol test.

At the hospital, the trooper handed Ingram his clipboard

and a form titled, "Form Prescribing the Procedure to Obtain an

Independent Analysis of Blood Sample and Lists of Laboratories

Approved by the Division of Forensic Science." Ingram checked

the box on the form beside the following words: "I do not now

elect to have the second sample (in the BLUE box) sent for an

independent analysis of alcohol, but acknowledge that I/my

counsel may do so within 72 hours by advising the chief police

officer as described in the instruction." The trooper testified

that Ingram read the form, signed it, and returned it without

asking questions. The trooper did not provide Ingram a copy of

the form to retain.

At the conclusion of the hearing, the trial judge denied

the motion to suppress. The trial judge later convicted Ingram

- 2 - on his conditional guilty plea. See Code § 19.2-254. This

appeal challenges the judge's ruling on the motion.

II.

Ingram contends the trooper failed to substantially comply

with Code § 18.2-268.6 because he did not give a copy of the

form to Ingram after Ingram read and signed it. Ingram argues

that the clear language of the statute required the trooper to

give him the form to retain in order that he or his attorney

could "writ[e] on the form provided hereinabove" and request an

independent analysis. We agree.

Following an arrest pursuant to Code § 18.2-266 and the

taking of two vials of blood for testing, the Code specifies

procedures for handling the blood. See Code § 18.2-268.2. At

the time of these events, Code § 18.2-268.6 provided in

pertinent part as follows:

Immediately after taking possession of the second container, the officer shall give to the accused a form provided by the Division which sets forth the procedure to obtain an independent analysis of the blood in the second container, and a list of the names and addresses of laboratories approved by the Division. The form shall contain a space for the accused or his counsel to direct the officer possessing the second container to forward it to an approved laboratory for analysis, if desired. If the accused directs the officer in writing on the form to forward the second container to an approved laboratory of the accused's choice, the officer shall do so.

If the accused does not direct otherwise on the form, the officer having

- 3 - the second container shall deliver it to the chief police officer. The chief police officer, upon receiving the container, shall retain it for a period of seventy-two hours, during which time the accused or his counsel may, in writing on the form provided hereinabove, direct the chief police officer to mail the second container to the laboratory the accused has chosen from the approved list.1

(Emphasis and footnote added).

"In this Commonwealth, courts are required to apply the

plain meaning of statutes, and we are not free to add language,

nor to ignore language, contained in statutes." Signal Corp. v.

Keane Federal Systems, Inc., 265 Va. 38, 46, 574 S.E.2d 253, 257

(2003). Applying this principle of statutory construction, we

held in Artis v. City of Suffolk, 19 Va. App. 168, 450 S.E.2d

165 (1994), that "[m]erely showing the form to an accused at the

time a blood sample is taken is insufficient to comply with the

requirement of the statute that ['the officer shall give'] the

form . . . to the accused." Id. at 170, 450 S.E.2d at 166. In

ordinary parlance, "give" means "to confer the ownership of

without receiving a return" or "to put in possession of another

for his use." Webster's Third New International Dictionary 959

(1993). Requiring the accused to read, sign, and return the

1 In 2003, the legislature amended this section to provide a substantially different method for obtaining an independent analysis of the blood. See 2003 Va. Acts of Assembly, chs. 933, 936.

- 4 - form does not satisfy the statutory mandate to "give to the

accused" the form.

In addition to the plain meaning of the statute, the

statutory scheme clearly contemplates that the accused will

retain possession of a form because it provides that within

seventy-two hours "the accused or his counsel may, in writing,

on the form provided hereinabove, direct the chief police

officer to mail the second container [of blood] to the

laboratory the accused has chosen from the approved list." Code

§ 18.2-268.6 (emphasis added). The practical consequences of

the legislative intent also support this conclusion. The notice

the form conveys to a person who is accused of being impaired

will have little meaning if that person is not allowed to retain

a form specifying the procedure. The form contains a list of

laboratories and addresses that few people are likely to absorb

and retain upon a mere reading. Without a copy of the form,

neither the accused nor his counsel will have the means to give

the chief police officer notice within seventy-two hours in the

statutorily required manner.

As in Artis, the trooper's failure to give the accused a

form for his use affected his substantive rights.

[T]he failure to comply with that requirement of the statute negates the possibility of "substantial compliance." Provision for the independent analysis designation form is intended to safeguard the right of an accused to seek an independent analysis of his blood. Having

- 5 - held that merely showing the form to the accused is insufficient to accomplish the requirements of Code § 18.2-268.6, it is self-evident that this safeguard has not been achieved in actuality or in substance. Accordingly, [the Commonwealth has not] substantially complied with the requirements of the statute.

19 Va. App. at 171, 450 S.E.2d at 167.

For these reasons, we reverse the conviction and dismiss

the charge.

Reversed and dismissed.

- 6 - Bumgardner, J., dissenting.

I dissent. The trooper gave the defendant a proper form on

which to make his election for an independent test. The

defendant made the election on the form and returned it. I do

not believe the trooper was required to give the defendant

another form in case he changed his mind.

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