COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Senior Judge Duff
Argued at Alexandria, Virginia
STEVEN L. WHIBLEY
MEMORANDUM OPINION * BY
v. Record No. 1515-97-4 JUDGE CHARLES H. DUFF
OCTOBER 27, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Alfred D. Swersky, Judge
Dale Edwin Sanders (Sanders & Associates, on
brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Steven L. Whibley appeals his conviction for driving while
intoxicated. He contends that the trial judge erred in admitting
into evidence a certificate of breath alcohol analysis. We
disagree and affirm.
I.
"The admissibility of 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." Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)
(citation omitted). "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.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
So viewed, the evidence proved that, on January 5, 1997,
Officer Gerald Ford stopped appellant's car and arrested him for
driving while intoxicated. Within two hours of the arrest, Ford
advised appellant of the implied consent law. Ford told
appellant that "the Virginia consent law requires [appellant] to
take a breath test . . . [that] he is required to take a breath
test by driving on Virginia highways." Although Ford could not
recall verbatim what he told appellant, he testified that he
"read the implied consent" law "from a card" that was issued by
the police department. Ford averred that he "always" reads "the
implied consent . . . from the card." Ford was unable to produce
the card at trial.
Appellant objected to the admission of the certificate of
analysis because there was "[in]adequate evidence that an
accurate version of the implied consent was read" to appellant.
Appellant argued that Ford's coercive manner of telling appellant
he had to take the test while he was under arrest and Ford's
failure to advise appellant of the consequences for refusing to
submit to a breath test invalidated his consent. Appellant
contends that he has the power to refuse such a test, and without
being fully informed of the implied consent law, including the
consequences for refusing, he was unaware that he could refuse
the test. Accordingly, argues appellant, he was unable to give
"[a]ctual, voluntary consent." Appellant presented no evidence.
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The trial judge took the matter under advisement. By
opinion letter, he admitted the certificate of analysis, denied
appellant's motion to strike, and found appellant guilty of
driving while intoxicated.
II.
A. Any person . . . who operates a
motor vehicle upon a highway . . . 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 . . . content of his blood, if he
is arrested for violation § 18.2-266 . . .
within two hours of the alleged offense.
B. Any person so arrested for a
violation of § 18.2-266 (i) or (ii) or both,
. . . 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. The
accused shall, prior to the administration of
the test, be advised by the person
administering the test that he has the right
to observe the process of analysis and to see
the blood-alcohol reading on the equipment
used to perform the breath test.
Code § 18.2-268.2.
In Caldwell v. Commonwealth, 205 Va. 277, 136 S.E.2d 798
(1964), the defendant argued "that the trooper failed to advise
him 'that he had the right to refuse to take [a] blood test.'"
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Id. at 280, 136 S.E.2d at 801. The Supreme Court held as
follows:
Under the [implied consent] statute any
person who operates a motor vehicle upon a
public highway in this Commonwealth shall be
deemed to have consented to, and shall be
entitled to, have a sample of his blood taken
for a chemical analysis to determine its
alcoholic content when arrested for operating
a motor vehicle while under the influence of
alcohol. In Walton v. City of Roanoke, 204
Va. 678, 133 S.E.2d 315 [(1963)], we said
that "the defendant was not compelled under
§ 18.1-55 to submit to the blood test. He
had a choice of either allowing the test to
be made or refusing it." We adhere to that
holding. However, the statute does require
an accused to submit to a blood test in order
to avoid prosecution for refusing to take it,
which may result in the suspension of his
operator's license if such refusal is found
to be unreasonable. He has the power to
refuse to submit to the test but no right to
refuse it. Since there exists no "right to
refuse" to submit to a blood test, the
trooper was without authority to advise
defendant that he had such a right.
Furthermore, defendant orally consented to
submit to the test so that it was not
incumbent upon the trooper to advise him of
the consequences if he refused. Had
defendant refused to submit to the test, it
then would have been the duty of the trooper
to advise the accused that "refusal to do so
constitutes grounds for the revocation of the
privilege of operating a motor vehicle upon
the highways of this State".
Id. at 281, 136 S.E.2d at 801 (applying Code § 18.1-55, the
former implied consent statute) (emphases added).
The consent to submit to a blood or breath
test, granted when a person operates a motor
vehicle upon the highways, "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." The mere fact that under the
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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."
Illustrative of a refusal that would be
deemed reasonable is when "a person's health
would be endangered by the withdrawal of
blood."
Cash v. Commonwealth, 251 Va. 46, 49-50, 466 S.E.2d 736, 738
(1996) (quoting Deaner v. Commonwealth, 210 Va. 285, 292-93, 170
S.E.2d 199, 204 (1969)).
Appellant does not contend that his arrest was made without
probable cause. Moreover, the evidence established that he was
arrested within two hours of the offense, therefore, he was
deemed to have consented to a breath test under the implied
consent law.
Code § 18.2-268.3 allows a person accused of driving while
intoxicated to refuse to take a breath or blood test. Even if
Ford failed to advise appellant of the consequences of refusal,
appellant had no right to refuse to take a required blood alcohol
test. See Caldwell, 205 Va. at 281, 136 S.E.2d at 801.
Moreover, because appellant did not refuse to take the test, Ford
was not required to inform him of the consequences pursuant to
Code § 18.2-268.3. After being advised that drivers on Virginia
highways are required to take a breath test, appellant consented
to take the test. Therefore, Code § 18.2-268.3 was not
implicated, and Ford was not required to inform appellant that he
could refuse the test.
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Moreover, Ford substantially complied with the implied
consent statute.
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
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procedures or any part thereof, and that as a
result his rights were prejudiced.
Code § 18.2-268.11.
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). Ford testified that he advised appellant of Virginia's
implied consent law from a preprinted card issued by the police
department. Therefore, at a minimum, the Commonwealth
established that Ford substantially complied with the implied
consent statute.
For the foregoing reasons, the trial judge did not err in
admitting the certificate of breath alcohol analysis.
Accordingly, we affirm the decision of the trial judge.
Affirmed.
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Steven L. Whibley v. Commonwealth of Virginia
Combined Opinion