COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Willis and Senior Judge Hodges
Argued at Alexandria, Virginia
JERRY D. MATTHEWS
v. Record No. 1281-94-4 MEMORANDUM OPINION * BY
JUDGE WILLIAM H. HODGES
COMMONWEALTH OF VIRGINIA OCTOBER 24, 1995
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Arthur B. Vieregg, Jr., Judge
William D. Pickett (P. Clark Kattenburg, P.C., on
brief), for appellant.
Marla Lynn Graff, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Jerry D. Matthews (appellant) was convicted by a jury of
driving while intoxicated, pursuant to Code § 18.2-266. On
appeal, appellant contends that the trial judge erred in allowing
the Commonwealth to present evidence of his intoxication after
ruling that the blood test results were inadmissible. We agree
and reverse the conviction.
The facts are not in dispute. On September 16, 1993,
Trooper Marcus McClanahan saw appellant's vehicle weave in and
out of traffic lanes. When appellant stopped his vehicle,
McClanahan approached and noticed that appellant smelled of
alcohol. Appellant had red eyes, a flushed face, and slurred
speech. Appellant fell down when he exited his vehicle. After
failing field sobriety tests, McClanahan took appellant to a
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
detention center where he was advised of the implied consent law.
Appellant elected to take a breath test, but, because appellant
belched several times, the test could not be properly
administered. Appellant was then offered a blood test.
Appellant consented to the test. After a technician drew blood
and placed it in two vials, McClanahan orally advised appellant
of his right to have one of the vials tested by an independent
laboratory. McClanahan did not give appellant a copy of the form
informing appellant of his right to an independent test and
listing approved independent labs, and appellant did not have the
second vial of blood tested. In a letter opinion, the trial
judge found that McClanahan's failure to give appellant a copy of
the form precluded admission of the test results. The trial
judge ruled that, even if the "substantial compliance"
requirement applied, "McClanahan's verbal summary of
[appellant's] right to obtain an independent analysis of his
blood does not constitute 'substantial compliance' of the
statute's requirements."
The trial judge also addressed the issue of waiver in his
letter opinion. He explained that
[e]vidence introduced by the Commonwealth
suggests that [appellant] was intoxicated
during the taking of his blood, so much so
that he was disorderly and had to be
restrained. Under such circumstances, the
Trooper could not have reasonably concluded
that [appellant] was capable of making a
meaningful decision to waive his right to
have a sample of his blood tested by an
independent laboratory, a right afforded him
by the General Assembly. Furthermore, by
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failing to leave the form with [appellant],
the Trooper deprived [appellant] of the
opportunity to exercise that right when he
became sober.
Despite his decision to preclude admission of the
Commonwealth's blood test results, the trial judge allowed the
Commonwealth to present other evidence of intoxication. Based on
McClanahan's testimony, the trial judge found appellant guilty.
"[T]he failure to comply with [the] requirement of the
statute [that an accused be given the form] negates the
possibility of 'substantial compliance.'" Artis v. City of
Suffolk, 19 Va. App. 168, 171, 450 S.E.2d 165, 167 (1994)
(reversing conviction and dismissing charge where police officer
showed form to accused and returned it to file). "[B]ecause the
independent test results could have been exculpatory," mere
suppression of the Commonwealth's test results "is [an]
inadequate [remedy]." Shoemaker v. Commonwealth, 18 Va. App. 61,
64, 441 S.E.2d 354, 356 (1994). See also Sullivan v.
Commonwealth, 17 Va. App. 376, 378, 437 S.E.2d 242, 243 (1993);
Breeden v. Commonwealth, 15 Va. App. 148, 150, 421 S.E.2d 674,
675 (1992) (failure to provide results of test requested deprives
accused of significant method of establishing his innocence).
The facts of this case established that appellant was not
given or offered the requisite form and did not knowingly and
intelligently waive his right to an independent analysis.
Accordingly, we reverse appellant's conviction and dismiss the
charge against him. See Artis, 19 Va. App. at 170-71, 450 S.E.2d
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at 166 (absent evidence of knowing and intelligent waiver or that
accused was offered form and refused to take it, failure to give
accused form required reversal and dismissal).
Reversed and dismissed.
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