COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Senior Judge Duff Argued at Alexandria, Virginia
STEVEN L. WHIBLEY MEMORANDUM OPINION * BY v. Record No. 1515-97-4 JUDGE CHARLES H. DUFF OCTOBER 27, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Alfred D. Swersky, Judge Dale Edwin Sanders (Sanders & Associates, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Steven L. Whibley appeals his conviction for driving while
intoxicated. He contends that the trial judge erred in admitting
into evidence a certificate of breath alcohol analysis. We
disagree and affirm.
I.
"The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be disturbed
on appeal in the absence of an abuse of discretion." Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)
(citation omitted). "On appeal, we review the evidence in the
light most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible therefrom." Martin v.
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
So viewed, the evidence proved that, on January 5, 1997,
Officer Gerald Ford stopped appellant's car and arrested him for
driving while intoxicated. Within two hours of the arrest, Ford
advised appellant of the implied consent law. Ford told
appellant that "the Virginia consent law requires [appellant] to
take a breath test . . . [that] he is required to take a breath
test by driving on Virginia highways." Although Ford could not
recall verbatim what he told appellant, he testified that he
"read the implied consent" law "from a card" that was issued by
the police department. Ford averred that he "always" reads "the
implied consent . . . from the card." Ford was unable to produce
the card at trial. Appellant objected to the admission of the certificate of
analysis because there was "[in]adequate evidence that an
accurate version of the implied consent was read" to appellant.
Appellant argued that Ford's coercive manner of telling appellant
he had to take the test while he was under arrest and Ford's
failure to advise appellant of the consequences for refusing to
submit to a breath test invalidated his consent. Appellant
contends that he has the power to refuse such a test, and without
being fully informed of the implied consent law, including the
consequences for refusing, he was unaware that he could refuse
the test. Accordingly, argues appellant, he was unable to give
"[a]ctual, voluntary consent." Appellant presented no evidence.
- 2 - The trial judge took the matter under advisement. By
opinion letter, he admitted the certificate of analysis, denied
appellant's motion to strike, and found appellant guilty of
driving while intoxicated.
II. A. Any person . . . who operates a motor vehicle upon a highway . . . shall be deemed thereby as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol . . . content of his blood, if he is arrested for violation § 18.2-266 . . . within two hours of the alleged offense. B. Any person so arrested for a
violation of § 18.2-266 (i) or (ii) or both,
. . . shall submit to a breath test. If the
breath test is unavailable or the person is
physically unable to submit to the breath
test, a blood test shall be given. The
accused shall, prior to the administration of
the test, be advised by the person
administering the test that he has the right
to observe the process of analysis and to see
the blood-alcohol reading on the equipment
used to perform the breath test.
Code § 18.2-268.2.
In Caldwell v. Commonwealth, 205 Va. 277, 136 S.E.2d 798
(1964), the defendant argued "that the trooper failed to advise
him 'that he had the right to refuse to take [a] blood test.'"
- 3 - Id. at 280, 136 S.E.2d at 801. The Supreme Court held as
follows: Under the [implied consent] statute any person who operates a motor vehicle upon a public highway in this Commonwealth shall be deemed to have consented to, and shall be entitled to, have a sample of his blood taken for a chemical analysis to determine its alcoholic content when arrested for operating a motor vehicle while under the influence of alcohol. In Walton v. City of Roanoke, 204 Va. 678, 133 S.E.2d 315 [(1963)], we said that "the defendant was not compelled under § 18.1-55 to submit to the blood test. He had a choice of either allowing the test to be made or refusing it." We adhere to that holding. However, the statute does require an accused to submit to a blood test in order to avoid prosecution for refusing to take it, which may result in the suspension of his operator's license if such refusal is found to be unreasonable. He has the power to refuse to submit to the test but no right to refuse it. Since there exists no "right to refuse" to submit to a blood test, the trooper was without authority to advise defendant that he had such a right. Furthermore, defendant orally consented to submit to the test so that it was not incumbent upon the trooper to advise him of the consequences if he refused. Had defendant refused to submit to the test, it then would have been the duty of the trooper to advise the accused that "refusal to do so constitutes grounds for the revocation of the privilege of operating a motor vehicle upon the highways of this State".
Id. at 281, 136 S.E.2d at 801 (applying Code § 18.1-55, the
former implied consent statute) (emphases added). The consent to submit to a blood or breath test, granted when a person operates a motor vehicle upon the highways, "is not a qualified consent and it is not a conditional consent, and therefore there can be no qualified refusal or conditional refusal to take the test." The mere fact that under the
- 4 - statute "an accused is afforded an opportunity to establish the reasonableness of his refusal does not operate to dilute the consent previously given, or convert that consent into a qualified or conditional one." Illustrative of a refusal that would be deemed reasonable is when "a person's health would be endangered by the withdrawal of blood."
Cash v. Commonwealth, 251 Va. 46, 49-50, 466 S.E.2d 736, 738
(1996) (quoting Deaner v. Commonwealth, 210 Va. 285, 292-93, 170
S.E.2d 199, 204 (1969)). Appellant does not contend that his arrest was made without
probable cause. Moreover, the evidence established that he was
arrested within two hours of the offense, therefore, he was
deemed to have consented to a breath test under the implied
consent law.
Code § 18.2-268.3 allows a person accused of driving while
intoxicated to refuse to take a breath or blood test. Even if
Ford failed to advise appellant of the consequences of refusal,
appellant had no right to refuse to take a required blood alcohol
test. See Caldwell, 205 Va.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Senior Judge Duff Argued at Alexandria, Virginia
STEVEN L. WHIBLEY MEMORANDUM OPINION * BY v. Record No. 1515-97-4 JUDGE CHARLES H. DUFF OCTOBER 27, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Alfred D. Swersky, Judge Dale Edwin Sanders (Sanders & Associates, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Steven L. Whibley appeals his conviction for driving while
intoxicated. He contends that the trial judge erred in admitting
into evidence a certificate of breath alcohol analysis. We
disagree and affirm.
I.
"The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be disturbed
on appeal in the absence of an abuse of discretion." Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)
(citation omitted). "On appeal, we review the evidence in the
light most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible therefrom." Martin v.
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
So viewed, the evidence proved that, on January 5, 1997,
Officer Gerald Ford stopped appellant's car and arrested him for
driving while intoxicated. Within two hours of the arrest, Ford
advised appellant of the implied consent law. Ford told
appellant that "the Virginia consent law requires [appellant] to
take a breath test . . . [that] he is required to take a breath
test by driving on Virginia highways." Although Ford could not
recall verbatim what he told appellant, he testified that he
"read the implied consent" law "from a card" that was issued by
the police department. Ford averred that he "always" reads "the
implied consent . . . from the card." Ford was unable to produce
the card at trial. Appellant objected to the admission of the certificate of
analysis because there was "[in]adequate evidence that an
accurate version of the implied consent was read" to appellant.
Appellant argued that Ford's coercive manner of telling appellant
he had to take the test while he was under arrest and Ford's
failure to advise appellant of the consequences for refusing to
submit to a breath test invalidated his consent. Appellant
contends that he has the power to refuse such a test, and without
being fully informed of the implied consent law, including the
consequences for refusing, he was unaware that he could refuse
the test. Accordingly, argues appellant, he was unable to give
"[a]ctual, voluntary consent." Appellant presented no evidence.
- 2 - The trial judge took the matter under advisement. By
opinion letter, he admitted the certificate of analysis, denied
appellant's motion to strike, and found appellant guilty of
driving while intoxicated.
II. A. Any person . . . who operates a motor vehicle upon a highway . . . shall be deemed thereby as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol . . . content of his blood, if he is arrested for violation § 18.2-266 . . . within two hours of the alleged offense. B. Any person so arrested for a
violation of § 18.2-266 (i) or (ii) or both,
. . . shall submit to a breath test. If the
breath test is unavailable or the person is
physically unable to submit to the breath
test, a blood test shall be given. The
accused shall, prior to the administration of
the test, be advised by the person
administering the test that he has the right
to observe the process of analysis and to see
the blood-alcohol reading on the equipment
used to perform the breath test.
Code § 18.2-268.2.
In Caldwell v. Commonwealth, 205 Va. 277, 136 S.E.2d 798
(1964), the defendant argued "that the trooper failed to advise
him 'that he had the right to refuse to take [a] blood test.'"
- 3 - Id. at 280, 136 S.E.2d at 801. The Supreme Court held as
follows: Under the [implied consent] statute any person who operates a motor vehicle upon a public highway in this Commonwealth shall be deemed to have consented to, and shall be entitled to, have a sample of his blood taken for a chemical analysis to determine its alcoholic content when arrested for operating a motor vehicle while under the influence of alcohol. In Walton v. City of Roanoke, 204 Va. 678, 133 S.E.2d 315 [(1963)], we said that "the defendant was not compelled under § 18.1-55 to submit to the blood test. He had a choice of either allowing the test to be made or refusing it." We adhere to that holding. However, the statute does require an accused to submit to a blood test in order to avoid prosecution for refusing to take it, which may result in the suspension of his operator's license if such refusal is found to be unreasonable. He has the power to refuse to submit to the test but no right to refuse it. Since there exists no "right to refuse" to submit to a blood test, the trooper was without authority to advise defendant that he had such a right. Furthermore, defendant orally consented to submit to the test so that it was not incumbent upon the trooper to advise him of the consequences if he refused. Had defendant refused to submit to the test, it then would have been the duty of the trooper to advise the accused that "refusal to do so constitutes grounds for the revocation of the privilege of operating a motor vehicle upon the highways of this State".
Id. at 281, 136 S.E.2d at 801 (applying Code § 18.1-55, the
former implied consent statute) (emphases added). The consent to submit to a blood or breath test, granted when a person operates a motor vehicle upon the highways, "is not a qualified consent and it is not a conditional consent, and therefore there can be no qualified refusal or conditional refusal to take the test." The mere fact that under the
- 4 - statute "an accused is afforded an opportunity to establish the reasonableness of his refusal does not operate to dilute the consent previously given, or convert that consent into a qualified or conditional one." Illustrative of a refusal that would be deemed reasonable is when "a person's health would be endangered by the withdrawal of blood."
Cash v. Commonwealth, 251 Va. 46, 49-50, 466 S.E.2d 736, 738
(1996) (quoting Deaner v. Commonwealth, 210 Va. 285, 292-93, 170
S.E.2d 199, 204 (1969)). Appellant does not contend that his arrest was made without
probable cause. Moreover, the evidence established that he was
arrested within two hours of the offense, therefore, he was
deemed to have consented to a breath test under the implied
consent law.
Code § 18.2-268.3 allows a person accused of driving while
intoxicated to refuse to take a breath or blood test. Even if
Ford failed to advise appellant of the consequences of refusal,
appellant had no right to refuse to take a required blood alcohol
test. See Caldwell, 205 Va. at 281, 136 S.E.2d at 801.
Moreover, because appellant did not refuse to take the test, Ford
was not required to inform him of the consequences pursuant to
Code § 18.2-268.3. After being advised that drivers on Virginia
highways are required to take a breath test, appellant consented
to take the test. Therefore, Code § 18.2-268.3 was not
implicated, and Ford was not required to inform appellant that he
could refuse the test.
- 5 - Moreover, Ford substantially complied with the implied
consent statute. The steps set forth in [Code] §§ 18.2-268.2 through 18.2-268.9 relating to taking, handling, identifying, and disposing of blood or breath samples are procedural and not substantive. Substantial compliance shall be sufficient. Failure to comply with any steps or portions thereof, . . . shall go to the weight of the evidence and shall be considered with all the evidence in the case; however, the defendant shall have the right to introduce evidence on his own behalf to show noncompliance with the aforesaid
- 6 - procedures or any part thereof, and that as a result his rights were prejudiced.
Code § 18.2-268.11.
The burden is on the Commonwealth to show that it
substantially complied with the requirements of the statute. See
Kemp v. Commonwealth, 16 Va. App. 360, 365, 429 S.E.2d 875, 878
(1993). Ford testified that he advised appellant of Virginia's
implied consent law from a preprinted card issued by the police
department. Therefore, at a minimum, the Commonwealth
established that Ford substantially complied with the implied
consent statute. For the foregoing reasons, the trial judge did not err in
admitting the certificate of breath alcohol analysis.
Accordingly, we affirm the decision of the trial judge.
Affirmed.
- 7 -