COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Alexandria, Virginia
JOHN EDWARD WILLIAMS
MEMORANDUM OPINION∗ BY
v. Record No. 2451-02-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
NOVEMBER 18, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
John E. Kloch, Judge
John E. Williams, pro se.
Stephen R. McCullough, Assistant Attorney General (Jerry W.
Kilgore, Attorney General, on brief), for appellee.
John Edward Williams (appellant) was convicted in a bench trial of driving while
intoxicated in violation of Code § 18.2-266. On appeal, appellant contends that the trial court
erred in denying his motion to suppress and admitting into evidence a “Certificate of Analysis”
of his blood alcohol content issued by the Commonwealth’s Forensic Science Division.
Specifically, appellant contends that the procedure did not substantially comply with Code
§§ 18.2-269.6 and 18.2-268.7. Finding no error, we affirm.
I. BACKGROUND
“On appeal from a denial of a suppression motion, we must review the evidence in the
light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.”
Barkley v. Commonwealth, 39 Va. App. 682, 687, 576 S.E.2d 234, 236 (2003); see also Bass v.
Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000).
∗
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
So viewed, the evidence established that on January 19, 2002, at approximately 3:25 a.m.,
Trooper Ingham (Ingham) of the Virginia State Police was driving in an unmarked cruiser on I-395
when he saw a BMW approach at a high rate of speed. The car flashed its lights at the trooper.
Ingham moved his car to the right in response, and entered the middle lane. The BMW accelerated
and sped past him. Ingham followed the BMW, and paced its speed at 100 miles per hour. The
BMW swerved in and out of the left traffic lane. Ingham followed the BMW as it exited and
traveled east on Duke Street where he again clocked its speed at 90 miles per hour. The speed
limit on Duke Street is 35 miles per hour.
After stopping the vehicle, Ingham approached, and identified appellant as the driver. He
observed that appellant’s eyes were bloodshot and glassy and he smelled of alcohol. Ingham
asked appellant to perform a series of field sobriety tests, all of which he failed. During the tests,
appellant laughed inappropriately, and mocked Ingham. At 3:48 a.m., approximately twenty
minutes after the stop, Ingham arrested appellant for driving while intoxicated in violation of
Code § 18.2-266.
Ingham transported appellant to the Alexandria jail, and advised him of the Virginia
implied consent law. After learning that the Intoxilyzer 5000 machine was not available, Ingham
took appellant to Alexandria Hospital where Nurse Cynthia Botts (Botts) drew appellant’s blood
for testing. Ingham testified that he was present throughout the procedure. He watched while
appellant’s blood was placed into two vials provided by the Division of Forensic Science (the
Division). He then sealed the vials at the direction of Botts. Ingham testified that pre-numbered
“Certificates of Blood Withdrawal” (CBW) were attached to the vials, with their perforations
intact. Ingham initialed the certificates, placed the vials into two containers provided by the
Division and sealed the containers to prevent tampering. Before sealing the containers, Ingham
noted that there was nothing in the containers other than the sealed vials of blood and attached
-2-
certificates. Ingham gave appellant a form that described the procedure necessary for appellant
to obtain an independent analysis of his blood which appellant chose to do. Ingham mailed one
container and set of vials to the Medical College of Virginia, and one to the Division.
Nurse Botts testified at trial that she was on duty the night of appellant’s arrest and that
she withdrew blood from appellant. She stated that she used soap and water to cleanse
appellant’s arm, and used a sterile syringe from a sealed package to remove the blood sample.
Botts extracted approximately 20 c.c.s of blood from appellant, and placed about 10 c.c.s of the
blood into each of two vials. She testified that she watched as Ingham sealed the vials at her
direction and completed the CBW.
Over appellant’s objection, the Commonwealth introduced at trial a certificate of analysis
produced by the Division. The certificate of analysis indicated that the blood contained in vial
numbered 104145 had a blood alcohol content of 0.14% by weight by volume. The certificate of
analysis stated that the “CBW was detached from the vial at the perforation.” The CBW
corresponding to vial numbered 104154 was attached to the certificate of analysis. The CBW
contained appellant’s name and address, Botts’ name, the date and time appellant’s blood was
drawn, information identifying Ingham as the arresting officer, and Ingham’s initials. The
certificate of analysis further stated that the vial seal had not been broken or tampered with when
received by the Division.
II. MOTION TO SUPPRESS
“In reviewing a trial court’s denial of a motion to suppress, ‘[t]he burden is upon [the
defendant] to show that th[e] ruling, when the evidence is considered most favorably to the
Commonwealth, constituted reversible error.’” McGee v. Commonwealth, 25 Va. App. 193,
197, 487 S.E.2d 259, 261 (1997) (en banc) (alterations in original) (quoting Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). “The admissibility of
-3-
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.” Crest v. Commonwealth, 40 Va. App. 165, 170,
578 S.E.2d 88, 90 (2003) (citation omitted).
Appellant contends that the Commonwealth did not substantially comply with the statutes
governing the transmission of blood samples, because the CBW was not attached to the vial upon
receipt. We disagree.
Code § 18.2-268.61 provides in pertinent part:
[T]he person who seals the vial shall complete the prenumbered
certificate of blood withdrawal from attached to the vial by the
Division. The completed withdrawal certificate for each vial shall
show the name of the accused, the name of the person taking the
blood sample, the date and time the blood sample was taken and
information identifying the arresting or accompanying officer. The
officer shall initial the completed certificate. The vials shall be
divided between two containers provided by the Division, and the
containers shall be sealed to prevent tampering with the vial. The
arresting or accompanying officer shall take possession of the two
containers as soon as the vials are placed in such containers and
sealed, and shall promptly transport or mail one of the containers
to the Division.
Pursuant to Code § 18.2-268.7, the certificate of analysis produced by the Division should include
the name of the accused; the date, time and by whom the blood
sample was received and examined; a statement that the seal on the
vial had not been broken or otherwise tampered with; a statement
that the container and the vial were provided by the Division and
that the vial was one to which the completed withdrawal certificate
was attached; and a statement of the sample’s alcohol or drug or
both alcohol and drug content. The Director shall remove the
withdrawal certificate from the vial, attach it to the certificate of
analysis and state in the certificate of analysis that it was so
removed and attached.
In addition, pursuant to Code § 18.2-268.11,
[t]he steps set forth in §§ 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
1
Code §§ 18.2-268.6, 18.2-268.7 and 18.2-268.11 were amended in 2003.
-4-
compliance shall be sufficient. Failure to comply with any steps or
portions thereof or a variance in the results of the two blood tests
shall not of itself be grounds for finding the defendant not guilty,
but 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.
(Emphasis added.)
The only manner in which the certificate of analysis did not comply with Code § 18.2-268.7
was its statement that the CBW had become detached from the vial itself. However, the evidence
proved that appellant’s blood was drawn, placed in the vials, identified by accompanying CBW’s,
placed in sealed containers, and mailed to the appropriate laboratories in accordance with Virginia
law. Ingham testified that when he sealed the containers, there was nothing in them except the vials
and their accompanying CBW’s. The CBW attached to the certificate of analysis contained
appellant’s name and the same vial number as that on the certificate itself.
Appellant’s reliance on Williams v. Commonwealth, 10 Va. App. 636, 394 S.E.2d 728
(1990), is misplaced. In Williams, the defendant moved to suppress the certificate of analysis
because it indicated that the container holding the vials had not been sealed. Stating that “The
purpose of the sealed container requirement is to ensure that the vial received by the laboratory is
the same vial containing the defendant’s blood which was placed in the container by the person
taking the blood sample . . .,” we held that the trial court erred in admitting the certificate into
evidence at trial. Id. at 638, 394 S.E.2d at 729. In the instant case, the evidence established that the
container was and remained sealed after the vials were placed inside. Although it is unclear how the
CBW became detached from the vial, whether in transit or upon arrival at the Division, there is no
evidence that Ingham and Botts had failed to comply with Code § 18.2-268.6 after taking the
sample.
-5-
These facts and circumstances establish substantial compliance with the procedures
governing the taking and handling of appellant’s blood. Therefore, the trial court did not err in
admitting the certificate of analysis.
Appellant’s additional argument that the charge against him should be dismissed presumes a
finding that the certificate of analysis was inadmissible. Having concluded to the contrary above,
we need not consider this question.
Finding no error, we affirm the judgment of the trial court.2
Affirmed.
2
Rule 5A:18 precludes appellant’s other arguments because these issues were not raised
at trial:
There was no other evidence about which vial was examined by
Ms. Woods; for which vial the results of the blood alcohol content
were reported in the Certificate of Analysis; how the container was
received at the Forensic Division; who had access to it; what
events affected the vial and CBW before they were examined by T.
Woods; how much time elapsed between the receipt of the
container and the time when T. Woods examined and tested the
sample; and whether this sample or countless other blood samples
of other accused persons in the Division at the same time could
have been associated with the CBW identifying the Defendant.
-6-
Benton, J., dissenting.
Pertinent to the issue in this case, Code § 18.2-268.7 requires the Director of the Division
of Forensic Science to include on the certificate of analysis “a statement . . . that the vial
[containing blood] was one to which the completed [blood] withdrawal certificate was attached.”
Code § 18.2-268.7 also provides that “[t]he Director shall remove the [blood] withdrawal
certificate from the vial . . . and state in the certificate of analysis that it was so removed . . . .”
Code § 18.2-268.7 further provides that “[u]pon proper identification of the certificate of [blood]
withdrawal, the certificate of analysis, with the [blood] withdrawal certificate attached, shall,
when attested by the Director, be admissible in any court . . . as evidence of the facts therein
stated and of the results of such analysis.”
The evidence establishes that the employee who executed the certificate of analysis on
behalf of the Director received and examined “Vial No. 104145 containing blood.” The
employee noted on the certificate of analysis that when she received the vial, the withdrawal
certificate “was detached from the vial at the perforation.” The employee also deleted from the
preprinted certificate of analysis, the words, “The attached Certificate of Blood Withdrawal was
affixed to the vial,” and she initialed the deletion. Although she attached the certificate of blood
withdrawal to the certificate of analysis, she indicated by a further deletion that she had not
“removed [the certificate of blood withdrawal] from the vial.” She also initialed this deletion.
No evidence establishes how and under what circumstances the certificate of blood
withdrawal was separated from the vial of blood. Indeed, no evidence established that the
certificate of blood withdrawal was received in the laboratory in the same container as the vial of
blood or at the same time the vial of blood was received. The statutory requirements that each
vial of blood have attached to it a “certificate of blood withdrawal,” see Code §§ 18.2-268.6 and
18.2-268.7, provide a method of assuring the integrity of the association of the blood sample,
-7-
which has been taken and sent in transit, with a blood sample which is later received in the
laboratory and tested. These statutory requirements clearly are designed to thwart tampering and
to alert the laboratory and the Commonwealth to the need to establish the integrity of the blood
sample if the vial and certificate of blood withdrawal arrive at the laboratory in a manner not
statutorily sanctioned. By statute, the certificate of analysis is only admissible in court after the
Director or his designated employee makes “proper identification of the certificate of blood
withdrawal.” Code § 18.2-268.7. These statutory requirements presuppose that the certificate of
blood withdrawal is attached to the vial of blood when received in the laboratory.
The certificate of analysis indicates that the vial of blood was received in the laboratory
for testing seventeen days after it was mailed. The vial of blood was examined three days after it
was received in the laboratory. The Commonwealth’s own evidence established that something
happened to separate the vial from the certificate of blood withdrawal before the employee in the
laboratory received the vial of blood. Where, as here, the vial and certificate of blood
withdrawal have “passed through several hands the evidence must not leave it to conjecture as to
who had it and what was done with it between the taking and the analysis.” Rogers v.
Commonwealth, 197 Va. 527, 531, 90 S.E.2d 257, 260 (1955). The Commonwealth has failed to
establish when, during those twenty days, and under what circumstances the certificate of blood
withdrawal was detached and came to be in the possession of the examiner. Thus, the record
does not establish that this statutory “safeguard has . . . been achieved in actuality or in
substance.” Artis v. City of Suffolk, 19 Va. App. 168, 171, 450 S.E.2d 165, 167 (1994). In
failing to do so, the Commonwealth has not substantially complied with the statutory
requirements.
For these reasons, I would hold that the trial judge erred in admitting the certificate of
analysis. Thus, I would reverse the conviction and remand for a new trial.
-8-