Walker v. City of Lynchburg

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Bray
Argued at Richmond, Virginia

NORMAN LUTHER WALKER

v. Record No. 0226-95-3 OPINION BY
JUDGE JERE M. H. WILLIS, JR.
CITY OF LYNCHBURG MARCH 26, 1996

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
Margaret A. Nelson (Office of the Public
Defender, on brief), for appellant.

Elizabeth P. McDonald (Commonwealth's
Attorney's Office, on brief), for appellee.

On appeal from his conviction of operating a motor vehicle

while under the influence of alcohol, Norman Luther Walker

contends the trial court erred in holding that the City of

Lynchburg complied with the Virginia Implied Consent Law. We

find no error and affirm the judgment of the trial court.

At 10:00 p.m. on April 22, 1994, Walker was operating a

motor vehicle westward on Route 460 toward Lynchburg. A

Lynchburg deputy observed the vehicle proceeding erratically and

running on and off the shoulder of the road. The deputy was

off-duty, so she called for another officer. Officer Pelletier

responded and stopped the vehicle. As he approached the vehicle,

Officer Pelletier smelled a strong odor of alcohol and saw a

woman in the backseat drinking a beer. Upon removing Walker from

the car, Officer Pelletier smelled alcohol on Walker as well.

Walker performed two field sobriety tests. He completed
neither accurately. Officer Pelletier arrested Walker and

advised him of the implied consent law, Code § 18.2-268.2.

Walker elected to take a blood test and was transported to

Lynchburg General Hospital. An authorized laboratory technician

tried three times to draw blood from Walker's arm, but without

success. While this effort was in progress, Walker smiled at

Officer Pelletier and said, "I told you I wouldn't make it easy

on you." After being told by the technicians that they were

unable to draw blood from Walker, Officer Pelletier asked Walker

if he knew of any other place where they could try to draw blood.

Walker did not reply. Officer Pelletier then determined that

the blood test could not be accomplished and was therefore

unavailable. He transported Walker to the Lynchburg Police

Department, where a breath test was performed. This test

produced a blood alcohol reading of .15%.
Marsha Accordino, the clinical laboratory coordinator at

Lynchburg General Hospital, testified that hospital regulations

permitted the withdrawal of blood from only the hands and arms

for purposes of DUI blood alcohol testing. She testified that if

blood cannot be drawn from those parts of the body, the

alternative is the withdrawal of arterial blood. That procedure

requires a doctor's approval and requires that the patient be

admitted to the hospital. Walker's circumstances did not support

admission to the hospital on either basis.

At trial, Walker moved to suppress the results of the breath

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test on the ground that he was denied his right to a blood test.

He argued that Officer Pelletier acted improperly and without

authority in declaring that the blood test was unavailable. The

trial court denied the motion to suppress, admitted the breath

test results, and specifically found that the "Commonwealth's

determination of unavailability is not arbitrary or capricious

and that such determination was reasonable." The record supports

this holding.
In 1993, Code § 18.2-268.2 stated, in pertinent part:
(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 his
blood, if he is arrested for violation of
§ 18.2-266 . . . within two hours of the
alleged offense.

(B) Any person so arrested . . . shall elect
to have either a blood or breath sample
taken, but not both. If either the blood
test or the breath test is not available,
then the 1 available test shall be taken
. . . .

"Code § 18.2-268 contemplates the existence of both a blood and

breath test." Driver v. Commonwealth, 6 Va. App. 583, 585, 371

S.E.2d 27, 28 (1988). "If one of the tests is unavailable the

government must provide a reasonable explanation for its

unavailability." Mason v. Commonwealth, 15 Va. App. 583, 585,

1
Acts 1994, cc. 359, 363 rewrote this section.

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425 S.E.2d 544, 545 (1993). "Once a driver elects to take either

the blood test or the breath test, if the election is not honored

because of unavailability, the Commonwealth must establish a

'valid reason for the lack of availability of a test.'" Id.

(quoting Breeden v. Commonwealth, 15 Va. App. 148, 151, 421

S.E.2d 674, 676 (1992)).

The laboratory technicians tried three times to draw blood

from Walker. The remaining option was withdrawal from an artery.

However, this could not be done because Walker was neither an
in-patient nor an emergency patient. These circumstances

provided sufficient basis to determine unavailability of the

blood test. The officer acted properly in determining that the

blood test was unavailable and in making the breath test

available to Walker.

The judgment of the trial court is affirmed.

Affirmed.

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BENTON, J., dissenting.

The evidence proved that Walker was cooperative during the

procedure and did not interfere with the taking of his blood.

The Commonwealth has the burden of establishing a "valid reason

for the lack of availability of [the blood] test." Breeden v.

Commonwealth, 15 Va. App. 148, 151, 421 S.E.2d 674, 676 (1992).

The technician's testimony that she could not locate a vein from

which to draw blood was insufficient to prove the test was

unavailable under Code § 18.2-268.2. The record proved that the

officer failed to inquire whether a qualified physician or nurse

was available in the hospital's adjacent emergency room to

withdraw blood from Walker. I would hold that the police officer

unreasonably made the medical judgment that the sample of blood

could not be taken for the test.

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