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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