Bristol v. Commonwealth

PRESENT: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and Agee,
JJ., and Russell, S.J.

JOSHUA BRISTOL

v. Record No. 060263 OPINION BY JUSTICE BARBARA MILANO KEENAN
November 3, 2006
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal involving two criminal convictions based on

a defendant’s alleged operation of a motor vehicle while under

the influence of alcohol, we consider whether the circuit court

erred in admitting a certificate of blood analysis.

Joshua Bristol was tried in the Circuit Court of the City

of Portsmouth for driving while under the influence of alcohol

(DUI), in violation of Code § 18.2-266, and for maiming another

as a result of driving under the influence, in violation of Code

§ 18.2-51.4. At a bench trial, the Commonwealth offered in

evidence a certificate of analysis of Bristol’s blood alcohol

content (BAC) to establish a rebuttable presumption under Code

§ 18.2-269 that Bristol was intoxicated at the time of the

offenses. Over Bristol’s objection, the circuit court admitted

the certificate of analysis, which showed that Bristol had a BAC

of 0.11 by weight by volume.

Bristol was convicted of both offenses. The circuit court

sentenced Bristol for the felony maiming offense to a term of

five years’ imprisonment, with two years and six months

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suspended. The court also sentenced Bristol to 12 months in

jail for the DUI offense.

Bristol appealed his convictions to the Court of Appeals,

arguing that the circuit court improperly admitted the

certificate of analysis into evidence. A panel of the Court of

Appeals agreed and reversed Bristol’s conviction, holding that

the certificate of analysis had been improperly admitted into

evidence because Bristol had not been arrested within three

hours of the offenses as required by Code § 18.2-268.2(A).

Bristol v. Commonwealth, 45 Va. App. 534, 612 S.E.2d 244 (2005).

The Court of Appeals granted the Commonwealth’s petition

for rehearing en banc and stayed the panel’s decision. Bristol

v. Commonwealth, 45 Va. App. 673, 613 S.E.2d 480 (2005). On

rehearing en banc, the Court of Appeals held that the circuit

court properly admitted the certificate of analysis because

Bristol was under arrest within three hours of the offenses as a

result of submitting to a police officer’s authority at the

hospital. Bristol v. Commonwealth, 47 Va. App. 584, 603, 625

S.E.2d 676, 685 (2006). Bristol appeals from the Court of

Appeals’ judgment.

The evidence at trial showed that on July 4, 2003, Bristol

and his friends were drinking alcoholic beverages and playing

pool at the Three Cheers Lounge in Portsmouth. When Bristol

left the lounge around 1:45 a.m., he agreed to give Debra Fly a

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ride on his motorcycle. Bristol drove his motorcycle around the

lounge parking lot with Fly seated behind him as a passenger.

Bristol’s vehicle reached speeds estimated between 50 and 80

miles per hour.

While still in the parking lot, Bristol drove directly into

a crowd of people without reducing his vehicle’s speed. His

motorcycle struck April Mapp, who was standing on the curb,

causing her to be thrown into the air. As a result of the

collision, Bristol fell off the motorcycle.

When City of Portsmouth Police Officer J.M. Doyle responded

to the scene about 1:56 a.m., Bristol and Mapp were both lying

in the parking lot. Mapp had head and brain injuries and a

broken leg. Bristol was conscious, but had abrasions and

bruises on his face. According to a paramedic who responded to

the scene, Bristol smelled of alcoholic beverages.

At 2:50 a.m., Doyle went to the hospital to see Bristol,

who was in a trauma unit waiting to be examined. Doyle observed

that Bristol’s speech was slurred and that he smelled strongly

of alcoholic beverages.

At 2:56 a.m., Doyle told Bristol he was under arrest and

informed him of the implied consent provisions of Code § 18.2-

268.2. Bristol indicated that he understood those provisions

and, at 3:05 a.m., signed a form authorizing the hospital to

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draw a blood sample. Doyle did not take any measures at that

time to restrain Bristol.

Shortly thereafter, hospital personnel moved Bristol from

the trauma unit to the hospital’s emergency room. Doyle

accompanied Bristol to the emergency room and sat with him until

a lab technician, Teresa Whitfield, arrived to draw Bristol’s

blood. However, Doyle took no measures to restrain Bristol or

his movements. When Whitfield asked Bristol if he understood

that she was drawing a blood sample at the request of the

police, Bristol indicated that he understood. Whitfield drew

the blood sample from Bristol.

After taking possession of the vials containing Bristol’s

blood, Doyle returned to the police station to write a report of

the parking lot incident. In that report, Doyle did not

indicate that Bristol had been arrested.

Soon after Doyle left the hospital, Officer James Eberts

arrived and attempted to interview Bristol. However, Bristol

was incoherent, his speech was slurred, and he was in pain from

the accident. Eberts left the hospital without taking any

further action regarding Bristol. When Bristol was released

from the hospital later that day, he was not taken into police

custody or brought before a magistrate.

Two days later, Eberts telephoned Bristol and asked Bristol

to come to the police station to be interviewed. Bristol went

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to the police station and, after Eberts conducted an interview

there, Bristol left without any further action by the police.

About a month later, Bristol telephoned the police to inquire

about Mapp’s condition. On none of these occasions did the

police tell Bristol that he was under arrest or indicate that he

would be charged with a criminal offense.

In August 2003, the Division of Forensic Science completed

a certificate of analysis after performing tests on the blood

sample drawn from Bristol at the hospital after the accident.

The certificate of analysis indicated that Bristol’s blood

alcohol content at the time the sample was taken was 0.11 by

weight by volume.

A grand jury indicted Bristol on September 4, 2003. On

September 11, 2003, Bristol presented himself at the police

station and was taken into custody.

On appeal, Bristol argues that the circuit court improperly

admitted the certificate of analysis into evidence. Bristol

contends that he was not arrested at the hospital on the date of

the offenses, because he was not restrained by the police or

taken before a magistrate. He asserts that because he was not

validly arrested within three hours of the offenses as required

by Code § 18.2-268.2(A), he did not impliedly consent to have

his blood drawn. Therefore, Bristol maintains, a rebuttable

presumption of intoxication did not arise under Code § 18.2-269.

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 In response, the Commonwealth argues that the certificate

of analysis was properly admitted into evidence. The

Commonwealth contends that by “telling Bristol that he was under

arrest and advising him of the implied consent law, [Officer]

Doyle asserted his lawful authority to arrest Bristol.”

Therefore, the Commonwealth maintains, Bristol was under arrest

at the hospital as soon as he consented to have his blood drawn,

because that consent constituted a submission to Officer Doyle’s

authority. We disagree with the Commonwealth’s arguments.

We review de novo the issue of law whether the undisputed

facts before us establish that the officers effected an arrest

of Bristol. See United States v. Hamlin, 319 F.3d 666, 671 (4th

Cir. 2003); United States v. Sinclair, 983 F.2d 598, 601 (4th

Cir. 1993). The mere words of an officer stating to a suspect

that he is “under arrest” are not sufficient to constitute an

arrest. California v. Hodari D., 499 U.S. 621, 626 (1991);

State v. Oquendo, 613 A.2d 1300, 1309-1310 (Conn. 1992). An

arrest occurs when an officer physically restrains a suspect or,

in the absence of physical restraint, the suspect submits to the

officer’s assertion of authority and purpose to arrest. Hodari

D., 499 U.S. at 626; White v. Commonwealth, 267 Va. 96, 104, 591

S.E.2d 662, 666 (2004); Howard v. Commonwealth, 210 Va. 674,

677, 173 S.E.2d 829, 832 (1970).

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 An arrest completed by a suspect’s submission to police

authority must manifest the suspect’s complete surrender of his

personal liberty to the officer’s authority. As we explained in

Howard, “an arrest is made by the actual restraint of the person

of the defendant or by his submission to the custody of an

officer.” Id. at 677, 173 S.E.2d at 832; see also White, 267

Va. at 104, 591 S.E.2d at 666. Thus, after an arrest, a

suspect’s liberty is completely constrained, at least until a

judicial officer has determined the issue of bail. Commonwealth

v. Hill, 264 Va. 541, 547, 570 S.E.2d 805, 808 (2002).

In the present case, it is undisputed that neither Officer

Doyle nor Officer Eberts physically restrained Bristol at the

hospital after Officer Doyle told Bristol that he was “under

arrest.” Therefore, Bristol was arrested at the hospital only

if his consent to the blood test constituted a complete

surrender of his personal liberty in submission to Officer

Doyle’s assertion of authority. We conclude that Bristol’s

consent to the blood test was not such a surrender of his

personal liberty.

Bristol merely agreed to submit to a blood test. He did

not make any statement nor did he act in a manner demonstrating

a complete surrender of his personal liberty to Officer Doyle’s

control.

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 The events that occurred at the hospital confirm the

limited nature of Bristol’s acquiescence. After Officer Doyle

informed Bristol of the implied consent provisions of Code

§ 18.2-268.2 and Bristol agreed to have the blood sample drawn,

Doyle did not restrict Bristol’s movements in any manner.

Officer Doyle merely accompanied Bristol to the emergency room

where Bristol’s blood was drawn. Officer Doyle then left the

hospital, taking no action to constrain Bristol’s personal

liberty. Likewise, Officer Eberts did not act in a manner that

could be construed as constraining Bristol’s personal liberty.

Bristol left the hospital on his own, and the police did not

take any immediate action to restrain him. Thus, Bristol’s

consent to the blood test did not constitute a submission to

police authority resulting in an arrest.

The language of the implied consent statute lends further

support to our conclusion. Under Code § 18.2-268.2(A), a person

who operates a motor vehicle on a highway in Virginia is deemed

to consent to have a sample of his blood or breath taken for

chemical analysis if he is arrested for a violation of Code

§ 18.2-266 or certain other related statutes within three hours

of the alleged offense. This requirement is further detailed in

subsection B of the statute, which states in relevant part that

a person “so arrested . . . shall submit to a breath test” or,

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under specified circumstances, a blood test. Code § 18.2-

268.2(B).

Under these provisions, a driver must be arrested within

three hours of an offense before that driver may be required to

submit to a breath or blood test. Because the driver’s timely

arrest triggers the statutory consent requirement, the arrest

must be completed before the driver may be required to take the

test. Thus, based on this statutory language, a driver’s mere

agreement to take a breath or blood test cannot constitute a

functional component of the driver’s arrest.

Accordingly, we hold that Bristol was not arrested within

three hours of the offenses as required by the implied consent

provisions of Code § 18.2-268.2. Therefore, the certificate of

blood analysis obtained pursuant to that statute was

inadmissible at trial. See Overbee v. Commonwealth, 227 Va.

238, 242-43, 315 S.E.2d 242, 243-44 (1984); Thomas v. Town of

Marion, 226 Va. 251, 254, 308 S.E.2d 120, 122 (1983).

The Commonwealth argues, nevertheless, that Bristol’s blood

test results were admissible under the “exigent circumstances”

exception to the Fourth Amendment search warrant requirement.

We find no merit in this argument.

The mere fact that a defendant’s blood alcohol content

might dissipate is insufficient, by itself, to support

application of the “exigent circumstances” exception. The

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possibility that blood alcohol content may dissipate exists in

every instance in which a driver has consumed alcoholic

beverages. Moreover, the “exigent circumstances” exception

advocated by the Commonwealth would undermine completely the

implied consent provisions of Code § 18.2-268.2. A driver’s

consent to take a blood or breath test would not be required,

even when there is probable cause to arrest the driver for a

violation of Code § 18.2-266 or a related statute, once it is

determined that the driver has consumed alcoholic beverages.

We also conclude that the Commonwealth’s reliance on the

holdings in Schmerber v. California, 384 U.S. 757 (1966), and

Tipton v. Commonwealth, 18 Va. App. 370, 444 S.E.2d 1 (1994), is

misplaced. In Schmerber, unlike in the present case, the

defendant was validly arrested before a blood sample was taken.

Holding that there was “no time to seek out a magistrate,” the

Supreme Court concluded that the seizure of the defendant’s

blood was “an appropriate incident” of his arrest. Id. at 771.

Because Bristol was not validly arrested before he submitted to

the blood test, the reasoning employed in Schmerber is

inapplicable here.

Additionally, we reject the reasoning employed by the Court

of Appeals in Tipton. There, the defendant had not been

arrested within the time period required by the implied consent

statute. Nevertheless, the Court of Appeals applied the

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analysis in Schmerber, holding that the defendant’s blood

alcohol level was properly obtained pursuant to the exigent

circumstances exception to the search warrant requirement. 18

Va. App. at 374, 444 S.E.2d at 6. Under the facts in the

present case, that reasoning effectively could undermine the

implied consent procedures mandated by Code § 18.2-268.2 and

render irrelevant the issue of a driver’s consent. Therefore,

we conclude that evidence of Bristol’s blood alcohol content was

not admissible under the “exigent circumstances” exception to

the Fourth Amendment search warrant requirement, and that the

circuit court erred in admitting into evidence the results of

Bristol’s blood test.

Finally, we disagree with the Commonwealth’s contention

that the erroneous admission of Bristol’s blood test results was

harmless error. It is probable that the circuit court, as the

trier of fact, attached great weight to the information

contained in the certificate. See Thomas, 226 Va. at 254, 308

S.E.2d at 122. Therefore, we do not reach the issue whether the

other evidence of intoxication, apart from the certificate of

analysis, is sufficient to sustain Bristol’s convictions. Id.

For these reasons, we will reverse the Court of Appeals’

judgment and remand the case to that Court with direction that

the matter be remanded to the circuit court for a new trial on

both charges, if the Commonwealth be so advised.

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 Reversed and remanded.

JUSTICE LEMONS, with whom JUSTICE KINSER joins, dissenting.

Because I would hold that Bristol was arrested at the

hospital, I respectfully dissent.

Events that transpired after the drawing of Bristol’s blood

are irrelevant to the inquiry before us. Either Bristol was

arrested at the hospital or he was not; the police failures

thereafter do not affect the analysis in this case.

"Whether an officer has probable cause to arrest an

individual in the absence of a warrant is determined under an

objective test based on a reasonable and trained police

officer's view of the totality of the circumstances." Brown v.

Commonwealth, 270 Va. 414, 419, 620 S.E.2d 760, 762 (2005).

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

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

trustworthy information, alone are sufficient to warrant a

person of reasonable caution to believe that an offense has been

or is being committed." Taylor v. Commonwealth, 222 Va. 816,

820, 284 S.E. 2d 833, 836 (1981).

Around 1:56 a.m. on July 5, 2003, Officer Doyle was called

to Three Cheers Lounge ("Three Cheers"). Officer Doyle knew

Three Cheers served alcohol and that Bristol had been inside

Three Cheers the night of the accident. Upon dispatch to the

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scene, Officer Doyle found Bristol lying in the parking lot in

front of Three Cheers. Officer Doyle learned from witnesses at

the scene that Bristol was "showing off" when he drove his

motorcycle into a crowd of people, causing the injury for which

he is now charged. When Officer Doyle arrived at the hospital

where Bristol had been transported, he noticed Bristol's speech

was slurred and that the smell of alcohol was "quite strong."

Code § 18.2-266(ii) prohibits a person from operating a motor

vehicle "under the influence of alcohol." The totality of the

circumstances in this case would warrant a reasonable person to

believe that Bristol was "under the influence of alcohol."

Clearly, Officer Doyle had probable cause to arrest Bristol.

Having established the requisite probable cause, the next

question is whether Bristol was, in fact, arrested such that

evidence of the certificate of blood analysis was admissible at

trial pursuant to Code § 18.2-268.2(A). The majority holds that

"Bristol was not arrested within three hours of the offenses as

required by the implied consent provisions of Code § 18.2-

268.2," and therefore, "the certificate of blood analysis

obtained pursuant to that statute was inadmissible at trial."

Code § 18.2-268.2 does not define “arrest,” but “[w]ith a

few statutory exceptions, . . . the common law relating to

arrest is the law on that subject in Virginia.” Galliher v.

Commonwealth, 161 Va. 1014, 1021, 170 S.E. 734, 736 (1933).

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This Court has held that: “Ordinarily, an arrest is made by the

actual restraint of the person of the defendant or by his

submission to the custody of an officer.” Howard v.

Commonwealth, 210 Va. 674, 677, 173 S.E.2d 829, 832 (1970)

(emphasis added). Officer Doyle told Bristol that he was under

arrest before reading him the implied consent law. While

Officer Doyle did not physically restrain Bristol, physical

restraint is not necessary to constitute an arrest. See

California v. Hodari D., 499 U.S. 621, 626-27 (1991). An arrest

occurs once a person "submits to the authority of the officer."

White v. Commonwealth, 267 Va. 96, 104, 591 S.E.2d 662, 666

(2004).

The majority contends that Bristol's consent to the blood

test was not a submission to Officer Doyle's authority. The

majority concludes that "Bristol merely agreed to submit to a

blood test. He did not make any statement nor did he act in a

manner demonstrating a complete surrender of his personal

liberty to Officer Doyle's control." However, the facts in the

record indicate otherwise.

Officer Doyle told Bristol he was under arrest. Officer

Doyle confirmed Bristol's arrest by reading him the implied

consent card which stated in relevant part that:

Any person who operates a motor vehicle upon a highway
as defined in 46.2-100 in this Commonwealth is deemed
thereby as a condition of such operation to have

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 consented to have samples of his blood and breath
taken for chemical test to determine the alcohol and
drug content of his blood if arrested within three
hours of the alleged offense or violation . . . . He
shall submit to a breath test unless the test is
unavailable or you are physically unable to comply, in
which case a blood test will be given.

(Emphasis added.) Indicating he understood the card read to

him, Bristol signed a consent form to have his blood drawn.

The majority argues that the language of Code § 18.2-

268.2(A) "cannot constitute a functional component" of the

arrest because the arrest itself "triggers the statutory consent

requirement." However, in my view consent and submission are

not analytically mutually exclusive. By consenting to have his

blood drawn, Bristol submitted to Officer Doyle's authority.

Code § 18.2-268.2(A) merely states that if arrested "within

three hours of the alleged offense" "[a]ny person . . . who

operates a motor vehicle upon a highway . . . in the

Commonwealth shall be deemed . . . to have consented to have

samples of his blood . . . taken."

Notwithstanding the fact that Bristol submitted to Officer

Doyle's authority when he signed the consent form, Bristol

continued to submit to Officer Doyle's authority. Under Officer

Doyle's authority, Bristol was "taken from the trauma area" and

placed in an emergency department room. Officer Doyle sat in

the room with Bristol until the lab technician arrived to draw

Bristol's blood. Upon arrival, the technician informed Bristol

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that his blood was being drawn "for the police officer."

Bristol told the lab technician that he understood this, and the

technician proceeded to draw Bristol's blood. These actions

were all completed in the presence of and pursuant to Bristol's

submission to the authority of Officer Doyle.

"[T]he test for existence of a 'show of authority' is an

objective one: not whether the citizen perceived that he was

being ordered to restrict his movement, but whether the

officer's words and actions would have conveyed that to a

reasonable person." Hodari D., 499 U.S. at 628. A reasonable

person in Bristol's position at the hospital before getting his

blood drawn would have perceived that his movement was

restricted and that he was not free to leave. The successive

actions taken by Bristol in this case constitute a clear

submission to Officer Doyle's authority.

The impracticability of the majority opinion is illustrated

by asking a simple question: During the very brief time between

announcing the arrest and obtaining consent to take blood, what

more was the officer expected to do with a seriously injured

person whom the officer has informed is under arrest? Was the

officer to handcuff Bristol or restrain him in some other manner

and risk interference with his medical care? While the majority

emphasizes that the officers involved may have failed to follow

up properly after arrest, the actions of the officers after

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obtaining the blood sample are not relevant to the determination

whether he was arrested at the hospital. Either Bristol was

arrested or he was not; subsequent failures on the part of the

police do not have any bearing on this question. Unfortunately,

motor vehicle operators who are both injured and intoxicated

arrive at hospital emergency rooms on a regular basis in this

Commonwealth. This majority opinion unnecessarily, and, I

believe, incorrectly impedes law enforcement officers in the

performance of their duties.

Accordingly, I would affirm the judgment of the Court of

Appeals.

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