Goodman v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Bumgardner
Argued at Salem, Virginia

CHARLES PATRICK GOODMAN
OPINION BY
v. Record No. 0222-01-3 JUDGE LARRY G. ELDER
JANUARY 29, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge

Jane Chittom, Appellate Defender (Public
Defender Commission, on briefs), for
appellant.

Jennifer R. Franklin, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.

Charles Patrick Goodman (appellant) appeals from his bench

trial convictions for driving under the influence of alcohol

(DUI) and aggravated involuntary manslaughter, in violation of

Code §§ 18.2-266 and 18.2-36.1(B), respectively. On appeal, he

contends that (1) the trial court erroneously admitted into

evidence the results of blood alcohol concentration testing

performed on blood drawn without his actual consent while he was

unconscious or incoherent and apparently unable to give actual

consent; (2) his prosecutions for driving under the influence

and aggravated involuntary manslaughter violated double jeopardy

prohibitions; and (3) even if the convictions did not impose

multiple punishments for the same offense, contrary to double
jeopardy prohibitions, the evidence was insufficient to support

his conviction for aggravated involuntary manslaughter because

it failed to prove both causation and criminal negligence.

First, we hold the taking and testing of appellant's blood

while he was incoherent or unconscious did not constitute an

unreasonable search in violation of the Fourth Amendment because

the blood was obtained in a manner that substantially complied

with Virginia's implied consent law. Thus, admission of the

test result was not erroneous. Second, we hold appellant's

convictions for both DUI and aggravated involuntary manslaughter

did not violate double jeopardy principles because the

convictions were obtained in a single proceeding and the

legislature intended to authorize the imposition of multiple

punishments in these circumstances. Finally, we hold the

evidence was sufficient to establish the requisite causal

connection between appellant's intoxication and the victim's

death and to prove appellant's behavior constituted criminal

negligence. Thus, we affirm appellant's convictions.

I.

BACKGROUND

Shortly after 8:00 p.m. on Sunday, August 13, 2000,

appellant lost control of the vehicle he was driving and crashed

into a pickup truck traveling in the opposite direction.

Appellant's passenger, Lisa Wright, died from injuries sustained

in the accident.

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 Appellant had been drinking for several hours prior to the

accident. He estimated drinking eight to eleven beers between

4:00 and 8:00 p.m. but admitted he "didn't count" how many beers

he drank and "it could have been more." Between about 6:00 and

8:00 p.m., appellant drank at Erma's bar. Around 8:00 p.m.,

appellant and Lisa Wright left Erma's bound for an establishment

called Rob's. Appellant admitted "stumbl[ing]" as they left.

They departed in appellant's car with appellant at the wheel,

even though appellant knew he was legally prohibited from

driving because he had been adjudicated a habitual offender and

knew it was not safe for him to drive because he had been

drinking. Appellant had experienced no mechanical problems with

his vehicle prior to the accident.

The accident occurred on a four-lane, divided road with

additional exit lanes or ramps bordering both the north and

southbound lanes. Immediately prior to the accident,

appellant's vehicle had "just come off the . . . ramp" and was

traveling north in the right through lane at a speed of at least

thirty-five to forty miles per hour. Appellant's vehicle came

in contact with the right curb and then veered left across the

second northbound lane, across the grassy median, and across the

left southbound lane into the right southbound lane, where it

collided with a pickup truck driven by Louis Durham.

Appellant's car was "coming very quickly" and was airborne, and

the impact pushed Durham's pickup into the right exit lane.

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Appellant's car left an arc of "tire smudges" spanning a

distance of 218 feet from the right curb in the northbound lanes

to the right curb of the southbound access lane.

Immediately after the accident, appellant, who was pinned

in the driver's seat, still had "a beer can clutched to his

chest," and numerous beer cans littered the floor of the car and

the ground outside appellant's door. Although appellant

appeared to be "passed out," witness Annette Jeter said she

"could hear a loud snoring sound" coming from him. She agreed

that appellant had facial lacerations and could have had facial

fractures, but she testified that, based on her fourteen years

of experience as a nurse, she concluded that he was not

unconscious because "normally if you are unconscious you don't

have a loud snoring; that reflex is basically silent and so you

don't really hear a loud sound."

When Police Officer Bonnie Oaks responded to the scene,

appellant looked unconscious, but he was "gurgling something"

indiscernible and was "incoherent." Oaks watched as emergency

personnel removed appellant's unresponsive passenger and then

cut appellant from the vehicle. Oaks had observed the beer can

in appellant's hand and the cans in his car and on the ground.

When Oaks leaned over appellant after he had been placed on a

gurney, she "could smell the strong odor of alcohol coming from

his person." Oaks then placed appellant under arrest and stayed

with appellant while he was transported to the hospital until

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his blood was drawn for alcohol testing pursuant to the implied

consent law.

Oaks tried to instruct appellant on the implied consent law

while en route to the hospital, but he was incoherent. Upon

their arrival at the hospital at 9:10 p.m., a registered nurse

inserted an angiocath and drew several vials of appellant's

blood for treatment purposes. Officer Oaks then requested a

"court certified blood tech" to draw appellant's blood for

testing pursuant to the implied consent law. Technician Steve

Parrish arrived at about 9:15 or 9:20 p.m. and withdrew two

vials of blood through the same catheter the hospital's nurse

had used. Appellant remained incoherent, but he "curs[ed]" and

was "somewhat combative" while his blood was being drawn. The

evidence established that no fluids or other substances were

administered to appellant before his blood was drawn and that

only approved solutions not containing any alcohol were used to

clean the site on his arm where the catheter was inserted.

Parrish gave the vials of blood to Officer Oaks, who mailed

one of the vials to the lab for testing and kept the other in

the property vault in case appellant wished to have it tested by

an independent lab. On the counter beside appellant in the

hospital treatment room, next to appellant's wallet and other

possessions, Oaks left an information sheet indicating that the

second blood sample would be retained by police for seventy-two

hours and that appellant had the right to have the sample tested

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by an independent lab. Detective Matthew Carter then went to

appellant's home, where he told appellant's wife about

appellant's right to have an independent lab test the second

blood sample, and he left her a second copy of the sheet

containing that same information.

Laboratory test results admitted into evidence indicated

that appellant had a blood alcohol concentration (BAC) of 0.29%.

At trial, appellant testified in his own defense, claiming

for the first time that he thought passenger Lisa Wright had

taken his wallet as they bumped into each other while leaving

the bar and that she had removed the money and then pretended to

have found the empty wallet on the seat of his car once they got

in. He said that he confronted her about the missing money

while they were driving to Rob's, that she "grabbed his wrist"

and "arm . . . and jerked [him]," and that he did not remember

anything after that until he saw his wife in the emergency room.

Appellant argued at trial that the BAC test results were

inadmissible. The trial court ruled the BAC results were

admissible as the product of a consensual search because the

officer's actions substantially complied with the implied

consent law. In the alternative, it held the nonconsensual,

warrantless seizure of appellant's blood was reasonable under

the Fourth Amendment because the police had probable cause to

arrest and reasonably feared loss of evidence and because the

blood was taken in a reasonable manner.

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 Appellant also argued that his conviction for both DUI and

aggravated involuntary manslaughter arising out of the same act

of driving under the influence would violate double jeopardy

prohibitions. The trial court implicitly denied the claim when

it convicted appellant of both offenses.

Finally, appellant challenged the sufficiency of the

evidence to prove that his intoxication caused the accident and

that his behavior constituted criminal negligence. In

convicting appellant of DUI and aggravated involuntary

manslaughter, the trial court made the following findings:

[T]he elements of [the] offense have been
proven by your conduct prior to your
operation of the motor vehicle in the
alcohol which you consumed prior to getting
behind the wheel; the fact that you didn't
have a license and the actions which you
took while driving immediately prior to this
accident. And that . . . show[s] a total
wilful disregard of human life . . . by your
wilful, wanton conduct in driving.

II.

ANALYSIS

A.

ADMISSIBILITY OF BLOOD TEST RESULTS

Code § 18.2-268.2 provides, in relevant part, as follows:

A. Any person . . . who operates a
motor vehicle upon a highway . . . in this
Commonwealth 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,
drug, or both alcohol and drug content of

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 his blood, if he is arrested for a violation
of § 18.2-266 . . . within two hours of the
alleged offense.
B. Any person so arrested . . . 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. . . .

Appellant contends that Code § 18.2-268.2 must be

interpreted in light of Code § 18.2-268.3, which provides that

if an arrestee refuses repeatedly to submit to blood or breath

testing after being advised of the possible consequences of such

refusal, "no blood or breath samples shall be taken," and if

charged with unreasonably refusing to submit to such testing,

the arrestee may introduce evidence to try to establish that his

refusal was reasonable. Thus, appellant argues, the law

acknowledges instances in which the implied consent law is

inoperable. In the absence of such an interpretation, he

contends, the refusal statutes would be rendered meaningless

because no situation would exist in which a refusal could be

found reasonable.

We disagree and hold that where the arresting officer has

probable cause to believe an incoherent or unconscious driver

has violated Code § 18.2-266, the implied consent law operates

to permit the taking and testing of blood from that driver and

that incoherence or unconsciousness does not constitute a

refusal, reasonable or unreasonable, because consent is

continuing. See State Dep't of Pub. Safety v. Wiehle, 287

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N.W.2d 416, 419 (Minn. 1979) (subsequently codified at Minn.

Stat. § 169A.51(6) (2000)). 1 But see State v. Wood, 576 P.2d

1181, 1183 (Okla. Crim. App. 1978) (holding that blood sample

may be take from unconscious driver because unconsciousness does

not constitute refusal of test under implied consent statute but

that accused "must be given the opportunity, when he regains

consciousness, to revoke his consent"), modified, Sartin v.

State, 617 P.2d 219, 220-22 (Okla. Crim. App. 1978) (reaffirming

Wood's test but noting original basis for decision no longer

viable because interpretation of Oklahoma Constitution on which

it was based was subsequently overruled).

As the Virginia Supreme Court observed in Deaner v.

Commonwealth, 210 Va. 285, 170 S.E.2d 199 (1969), interpreting

an earlier version of the implied consent law,

[t]he implied consent of one who
operates a vehicle on the public highways of
Virginia to take a blood test, in the event
he be charged with drunk driving, . . . is a
measure flowing from the police power of the
state designed to protect other users of
state highways.

* * * * * * *

It 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.

1
Many states resolve this question by statute. See
Patricia Jean Lamkin, Annotation, Admissibility in Criminal Case
of Blood Alcohol Test Where Blood Was Taken From Unconscious
Driver, 72 A.L.R.3d 325, §§ 9, 10 (1976 & Supp. 2001).

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 The fact that under the Virginia
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. The statute does excuse from
[punishment for refusal to take] the test
one whose refusal is reasonable[, such as]
where a person's health would be endangered
by the withdrawal of blood.

Id. at 289-93, 170 S.E.2d at 201-04, quoted with approval in

Cash v. Commonwealth, 251 Va. 46, 52, 466 S.E.2d 736, 739 (1996)

(holding that defendant's desire to consult counsel to see how

to protect herself "'from being framed'" furnished no legal

basis for her refusal to submit to blood alcohol testing

following DUI arrest).

As this passage makes clear, the implied consent law is

"designed to protect other users of state highways," Deaner, 210

Va. at 289, 170 S.E.2d at 202, and thus, the circumstances in

which one may reasonably refuse the test and abrogate the

consent implied by law are narrow, such as "where a person's

health would be endangered by the withdrawal," id. at 293, 170

S.E.2d at 204. To hold that an arrestee's mere inability to

refuse the statutorily authorized test constitutes a refusal

sufficient to abrogate the consent implied by his act of driving

would contravene the intent of the legislature, especially where

that inability results from unconsciousness induced by the

arrestee's voluntary act of drinking.

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 Thus, here, the taking of appellant's blood complied with

the implied consent statute, and the BAC test results were

properly admitted into evidence. Appellant was arrested for DUI

within two hours of the offense. Probable cause for the arrest

existed because tire marks indicated appellant's car veered

completely across a four-lane divided highway before colliding

head-on with another vehicle and appellant was found in the

driver's seat with "a beer can clutched to his chest," numerous

other beer cans just outside the car, and "the strong odor of

alcohol" emanating from his person. See, e.g., Wohlford v.

Commonwealth, 3 Va. App. 467, 471-72, 351 S.E.2d 47, 49 (1986).

Two vials of appellant's blood were drawn by a

court-certified blood technician. Although the blood was drawn

through a catheter inserted by hospital personnel for use in

treating appellant, the evidence established that only approved

solutions not containing any alcohol were used to clean the site

on appellant's arm where the catheter was inserted and no fluids

or other substances were administered to appellant before his

blood was drawn for BAC testing.

Finally, Officer Oaks mailed one vial of appellant's blood

to the state laboratory and retained the second vial in the

property vault in case appellant wished to have it tested by an

independent laboratory. Although appellant was incoherent or

unconscious when his blood was drawn and appeared unable to

understand what Officer Oaks attempted to tell him about his

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rights regarding the second sample, Oaks left next to

appellant's wallet and other personal possessions in the

treatment room an information sheet indicating that the second

sample would be retained by police for seventy-two hours and

that appellant had the right to have the sample tested by an

independent lab. Detective Carter then went to appellant's

home, where he gave appellant's wife the same information, both

orally and in writing.

For these reasons, we hold the trial court's admission of

the certificate of analysis into evidence was not error.

B.

DOUBLE JEOPARDY

Appellant contends his convictions for DUI and aggravated

involuntary manslaughter violated double jeopardy principles.

We disagree.

In the context of a single trial, "the double jeopardy

defense does not apply unless (a) the defendant is twice

punished for one criminal act, and (b) [either] the two

punishments are . . . for the same crime or one punishment is

for a crime which is a lesser included offense of the other,"

Coleman v. Commonwealth, 261 Va. 196, 200, 539 S.E.2d 732, 734

(2001), and (c) the legislature did not intend to authorize such

multiple punishments, see Payne v. Commonwealth, 257 Va. 216,

227, 509 S.E.2d 293, 300 (1999). Here, we assume without

deciding that DUI as proscribed by Code § 18.2-266(ii), (iii) or

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(iv) is lesser included in involuntary manslaughter as

proscribed by Code § 18.2-36.1. Nevertheless, for the reasons

set out in Dalo v. Commonwealth, 37 Va. App. 156, 554 S.E.2d 705

(2001), we conclude the legislature intended to permit the

imposition of multiple punishments for these offenses upon

convictions obtained in a single trial.

C.

SUFFICIENCY OF THE EVIDENCE

When considering the sufficiency of the evidence on appeal

of a criminal case, we view the evidence in the light most

favorable to the Commonwealth, granting to that evidence all

reasonable inferences deducible therefrom. See, e.g.,

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975). The credibility of a witness, the weight accorded

the testimony, and the inferences to be drawn from proven facts

are matters solely for the fact finder's determination. See

Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476

(1989). The fact finder is not required to believe all aspects

of a witness' testimony; it may accept some parts as believable

and reject other parts as implausible. See Pugliese v.

Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993).

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 A conviction for involuntary manslaughter in violation of

Code § 18.2-36.1(A) 2 (hereinafter "vehicular involuntary

manslaughter") requires proof that the accused was driving under

the influence, see Cottee v. Commonwealth, 31 Va. App. 398, 400,

524 S.E.2d 132, 133 (2000), and that a causal connection exists

between the driver's intoxication and the death of another

person, see Pollard v. Commonwealth, 20 Va. App. 94, 99, 455

S.E.2d 283, 286 (1995). A conviction for aggravated involuntary

manslaughter in violation of Code § 18.2-36.1(B) requires proof,

in addition, that the driver's "conduct . . . was so gross,

wanton and culpable as to show a reckless disregard for human

life," i.e., that the driver was criminally negligent. See

Cottee, 31 Va. App. at 400, 524 S.E.2d at 133. On appeal,

appellant concedes he was intoxicated at the time of the

accident but argues the evidence fails to prove a causal

connection between his intoxication and the victim's death,

2
Code § 18.2-36.1 provides as follows:

A. Any person who, as a result of
driving under the influence in violation of
clause (ii), (iii), or (iv) of § 18.2-266
. . . unintentionally causes the death of
another person, shall be guilty of
involuntary manslaughter.
B. If, in addition, the conduct of the
defendant was so gross, wanton and culpable
as to show a reckless disregard for human
life, he shall be guilty of aggravated
involuntary manslaughter . . . .

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especially in light of the absence of expert testimony "as to

the effects of the alcohol consumed on the driver's motor

skills." He also contends the evidence was insufficient to

prove he was criminally negligent. We disagree.

We addressed the sufficiency of the evidence to prove

causation in Pollard. In Pollard, as here, the driver conceded

the evidence was sufficient to prove he was driving under the

influence of alcohol but contested the sufficiency of the

evidence to prove "'a causal connection between [his] driving

under the influence and the death of the victim.'" 20 Va. App.

at 98, 455 S.E.2d at 286. Pollard involved a driver who hit a

bicyclist while passing through an intersection. Id. at 96, 455

S.E.2d at 284. The evidence established that Pollard was

"'going pretty fast,'" about ten miles per hour over the

35-mile-per-hour speed limit, and that he did not brake before

impact. Id. at 96-97, 455 S.E.2d at 285. The arresting officer

testified that Pollard's speech was slurred, his eyes were

bloodshot, his face was flushed, and he smelled of alcohol. Id.

Pollard said, "'I know I'm drunk,'" and was unable to complete a

series of field sobriety tests, but he refused to take a blood

or breath test. Id. at 97, 455 S.E.2d at 285.

In light of the above testimony, we held the evidence

was sufficient to prove that Pollard's
intoxication caused him to operate his
vehicle in a manner that resulted in [the
victim's] death. The evidence proved that
Pollard's speed and failure to maintain a

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 proper look out contributed to [the
victim's] death. The evidence also proved
that Pollard smelled of alcohol, slurred his
speech and was unsteady. Thus the proof of
intoxication was sufficient to connect
Pollard's speed, failure to brake, and
inattention with his "impaired perception,
retarded reflexes, and disrupted motor
coordination." Thus, proof of causation has
been satisfied.

Id. at 99, 455 S.E.2d at 286 (quoting Beck v. Commonwealth, 216

Va. 1, 5, 216 S.E.2d 8, 10 (1975)).

Similarly, in appellant's case, the evidence "was

sufficient to prove that [appellant's] intoxication caused him

to operate his vehicle in a manner that resulted in [the

victim's] death." Id. Appellant's excessive speed, reckless

driving and failure to brake resulted in his veering across a

four-lane divided highway and colliding almost head-on with an

oncoming pickup truck traveling in the far right lane. The

evidence also proved that appellant stumbled before entering the

car prior to the accident and that he smelled strongly of

alcohol and was found snoring immediately following the

accident. A nurse at the scene described appellant as "passed

out," and she opined that the snoring indicated appellant's

reduced state of awareness was not unconsciousness resulting

from any trauma he might have sustained in the collision.

Finally, a BAC test performed pursuant to the implied consent

law showed appellant's BAC level less than two hours after the

accident was 0.29%, more than three-and-one-half times the legal

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limit of 0.08%. See Code § 18.2-266; see also Code § 18.2-269.

Thus, even absent expert testimony regarding the probable impact

of appellant's BAC level on his ability to drive, "the proof of

intoxication was sufficient to connect [appellant's] speed,

[reckless driving], and inattention with his 'impaired

perception, retarded reflexes, and disrupted motor

coordination.'" Pollard, 20 Va. App. at 99, 455 S.E.2d at 286

(quoting Beck, 216 Va. at 5, 216 S.E.2d at 10).

The court was free to reject appellant's claim that the

accident occurred because the victim grabbed his arm, causing

him to lose control of the vehicle. Once the court rejected

that testimony, the only reasonable inference flowing from the

remaining evidence, viewed in the light most favorable to the

Commonwealth, was that appellant's intoxication was the

proximate cause of the accident which led to the victim's death.

Appellant testified that his car was in good working condition

prior to the accident, and he identified no mechanical

difficulties which could have contributed to the accident.

Immediately prior to the impact, appellant's vehicle hit the

right curb on a four-lane divided highway and veered in an arc

to the left a distance of over two hundred feet, traveling

across the raised median strip and through all four lanes of

traffic, before it collided almost head-on with a vehicle

traveling in the opposite direction. Appellant was traveling at

a high rate of speed, and no evidence indicated appellant

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attempted to brake or engage in any other evasive maneuvers

prior to the impact. Immediately after the impact, appellant

was found behind the wheel of the car snoring and still

clutching a beer can to his chest. Thus, both the eyewitness

testimony and the lack of any other explanation for the impact

support a finding that appellant's intoxication and incoherence

or unconsciousness resulting therefrom were the proximate cause

of the accident.

The evidence also was sufficient to prove appellant was

criminally negligent because the manner in which he operated his

vehicle "'show[ed] a reckless or indifferent disregard of the

rights of others, under circumstances reasonably calculated to

produce injury . . . and [in circumstances under which] the

offender [knew], or [may be] charged with the knowledge of, the

probable results of his acts.'" Keech v. Commonwealth, 9 Va.

App. 272, 279, 386 S.E.2d 813, 817 (1989) (quoting Bell v.

Commonwealth, 170 Va. 597, 611-12, 195 S.E. 675, 681 (1938)).

Appellant operated his car so that it crossed a raised median

strip, and he drove on the wrong side of the road before

colliding head-on with a pickup truck in the proper lane of

travel. In addition, appellant's car was proceeding at a high

rate of speed and showed no signs of braking or other evasive

maneuvers prior to the fatal impact. See, e.g., Zirkle v.

Commonwealth, 189 Va. 862, 869, 55 S.E.2d 24, 28 (1949).

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 For these reasons, we hold that the admission of

appellant's BAC test results was not error, that appellant's

convictions for both DUI and aggravated vehicular involuntary

manslaughter did not violate double jeopardy principles, and

that the evidence was sufficient to prove both the causation and

criminal negligence necessary to permit his conviction for

aggravated vehicular involuntary manslaughter. Thus, we affirm

appellant's convictions.

Affirmed.

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