COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
CURTIS S. SNIDER
OPINION BY
v. Record No. 0833-97-2 JUDGE JAMES W. BENTON, JR.
MARCH 3, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AMELIA COUNTY
Thomas V. Warren, Judge
Jonathan S. David (Joseph D. Morrissey;
Morrissey, Hershner & Jacobs, on brief), for
appellant.
Daniel J. Munroe, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Curtis S. Snider was convicted in a bench trial of operating
a motor vehicle upon a public highway while under the influence
of alcohol, in violation of Code § 18.2-266. He contends the
trial judge erred by admitting into evidence the blood alcohol
analysis because the procedure for extracting his blood did not
substantially comply with statutory requirements. Snider also
contends the evidence was insufficient to convict him of the
crime. We disagree and affirm his conviction.
The evidence at trial proved that when State Trooper Olinger
arrived to investigate a one-vehicle accident in Amelia County,
Snider had walked away. When Snider returned to his vehicle, he
told Trooper Olinger that he slid off the road while turning to
avoid several deer. Trooper Olinger noticed that Snider's eyes
were bloodshot and glassy and that his body had an odor of
alcohol. Although Trooper Olinger noticed that Snider's speech
was slurred, she testified that Snider's speech could have been
affected by an injury to his lip. Trooper Olinger testified that
Snider denied consuming any alcohol after the accident and
admitted that he consumed four beers before the accident. He
said he consumed the last beer one-half hour before the accident.
Trooper Olinger arrested Snider and transported him to have
a blood test performed. Trooper Olinger was present when a nurse
withdrew Snider's blood for the test. When the Commonwealth
offered as evidence the certificate of analysis of Snider's
blood, Snider's defense counsel objected to its admission because
Trooper Olinger did not know whether the nurse cleansed Snider's
arm before extracting blood. The trial judge overruled the
objection and admitted the certificate of analysis, which
indicated that Snider's blood had an alcohol content of .10 by
weight by volume.
In his defense, Snider testified that his car went into a
ditch after he swerved to avoid several deer. When no one passed
after twenty minutes, he retrieved a pack of six beers from his
vehicle and began to walk. During a two-mile walk, he drank four
or five beers. When asked if he remembered Trooper Olinger
questioning him about drinking after the accident, Snider
testified, "she asked me, but I can't remember the before or
after . . . . I said that I had been drinking."
The trial judge convicted Snider of driving under the
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influence of alcohol in violation of Code § 18.2-266.
Admissibility of Blood Test Results
In pertinent part, the implied consent statute provides as
follows:
For purposes of this article, only a
physician, registered professional nurse,
graduate laboratory technician or a
technician or nurse designated by order of a
circuit court acting upon the recommendation
of a licensed physician, using soap and
water, polyvinylpyrrolidone iodine or
benzalkonium chloride to cleanse the part of
the body from which the blood is taken and
using instruments sterilized by the accepted
steam sterilizer or some other sterilizer
which will not affect the accuracy of the
test, or using chemically clean sterile
disposable syringes, shall withdraw blood for
the purpose of determining its alcohol or
drug or both alcohol and drug content.
Code § 18.2-268.5. The legislature has clearly indicated in the
following statutory language that strict compliance with some
parts of the implied consent law will not be required:
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
procedures or any part thereof, and that as a
result his rights were prejudiced.
Code § 18.2-268.11 (emphasis added). See Artis v. City of
Suffolk, 19 Va. App. 168, 171, 450 S.E.2d 165, 167 (1994)
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(holding that "where there is substantial compliance, any
deficiency in the required procedures is a matter of weight and
sufficiency of the evidence to be determined by the trier of
fact"). 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).
Snider argues that the Commonwealth did not meet its burden
of proving substantial compliance with Code § 18.2-268.5 because
the evidence did not establish what, if any, solution was used to
cleanse Snider's arm before the blood was withdrawn. Snider
relies on Hudson v. Commonwealth, 21 Va. App. 184, 462 S.E.2d 913
(1995), where this Court held that using benadine to cleanse the
driver's arm before a blood test did not constitute substantial
compliance with Code § 18.2-268.5 because no evidence of
benadine's chemical properties was presented at trial. Id. at
186, 462 S.E.2d at 914. Snider argues that the circumstances
here are more egregious than in Hudson because either an unknown
solution or no solution was used on his arm.
In another context, the Supreme Court of Virginia has ruled
that, in determining the question of substantial compliance, "a
minor, trivial difference can be tolerated whereas a material
difference cannot." Akers v. James T. Barnes of Washington,
D.C., Inc., 227 Va. 367, 370, 315 S.E.2d 199, 201 (1984). "The
principle of substantial compliance, which is predicated upon a
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failure of strict compliance with applicable requirements,
operates to replace the protective safeguards of specificity with
a less exacting standard of elasticity, in order to achieve a
beneficial and pragmatic result." Coleman v. Pross, 219 Va. 143,
158, 246 S.E.2d 613, 622 (1978). We believe these general
standards can be applied to the requirement of the implied
consent law, where the mischief to be avoided is contamination of
the blood that is being extracted for the blood alcohol test. In
Hudson, the evidence proved that the area from which the blood
sample was extracted was, in fact, contaminated by benadine, a
solution whose chemical properties were not proved. The evidence
in this record proved that, although Trooper Olinger watched the
nurse extract blood from Snider's arm, Trooper Olinger could not
recall whether the nurse used a solution to prepare Snider's arm.
Thus, unlike Hudson, the evidence in this case leaves uncertain
whether any solution was used to cleanse Snider's arm before the
blood test.
The evidence proved that a properly designated nurse took
the sample. See Code § 18.2-268.5; Brooks v. City of Newport
News, 224 Va. 311, 315, 295 S.E.2d 801, 803 (1982) (holding that
the qualifications of the person who performs the test "is a
matter of substance, not procedure"). Because the evidence did
not establish whether a solution was used to prepare Snider's arm
for the blood extraction, we can only speculate that
contamination could have occurred. No evidence in the record
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proved that the nurse's failure to cleanse Snider's arm caused a
contamination which affected the accuracy of the test. See
Shumate v. Commonwealth, 207 Va. 877, 881-83, 153 S.E.2d 243, 247
(1967) (holding that substantial compliance existed even where
"it was not shown who took the blood [and] whether soap and water
were used to cleanse the place at which the blood was taken").
In other circumstances, we have ruled that "[w]here there is
mere speculation that contamination . . . could have occurred, it
is not an abuse of discretion to admit the evidence and let what
doubt there may be go to the weight to be given the evidence."
Reedy v. Commonwealth, 9 Va. App. 386, 391, 388 S.E.2d 650, 652
(1990). In view of the statutory mandate that substantial
compliance suffices to establish the procedural steps of taking
the blood, we conclude that the failure to prove whether a
solution was used to prepare a suspect's arm goes to the weight
of the evidence, not its admissibility. See Code § 18.2-268.11;
Stroupe v. Commonwealth, 215 Va. 243, 245, 207 S.E.2d 894, 896
(1974); Artis, 19 Va. App. at 171, 450 S.E.2d at 167.
Accordingly, we cannot say the trial judge abused his discretion
in admitting into evidence the certificate of blood analysis.
Furthermore, Snider retained "the right to introduce evidence on
his own behalf to show noncompliance with the aforesaid
procedures . . . and that as a result his rights were
prejudiced." Code § 18.2-268.11. See also Stroupe, 215 Va. at
245, 207 S.E.2d at 896 (observing that the statute allows the
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defendant to prove by the nurse the particulars of extracting his
blood).
Sufficiency of the Evidence
Snider next argues that even if his blood alcohol content
exceeded the legal limit to operate a motor vehicle, the
Commonwealth failed to prove that he consumed alcohol prior to
the accident or that he did not consume alcohol after the
accident.
"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. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). So viewed, the
evidence proved that Trooper Olinger noticed that Snider's speech
was slurred, his eyes were bloodshot and glassy, and he had an
odor of alcohol about his person. Because of those observations,
Trooper Olinger asked Snider if he had consumed alcohol after the
accident. Snider told her that he did not have anything to drink
after the accident. He told her that he consumed four beers
before the accident, the last being about thirty minutes prior to
the accident. Snider disputed only in part Trooper Olinger's
testimony concerning his statement. He testified that he did not
remember Trooper Olinger asking him whether he drank "before or
after" the accident; he testified that he told her he had been
drinking.
The trial judge accepted Trooper Olinger's testimony and did
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not believe Snider's testimony that he consumed the alcohol after
the accident. "The weight which should be given to evidence and
whether the testimony of a witness is credible are questions
which the fact finder must decide." See Bridgeman v.
Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
Trooper Olinger's testimony was competent, was not inherently
incredible, and, combined with the results of the blood alcohol
test, was sufficient to prove beyond a reasonable doubt that
Snider was guilty of driving while under the influence of
alcohol.
For these reasons, we affirm the conviction.
Affirmed.
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