COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia
DANE LESLEY CHASE
OPINION BY
v. Record No. 2259-00-2 JUDGE JERE M. H. WILLIS, JR.
DECEMBER 4, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF POWHATAN COUNTY
Thomas V. Warren, Judge
Roger C. Hinde (Keith A. Jones; Law Offices
of Roger C. Hinde, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Randolph A. Beales, Acting Attorney
General, on brief), for appellee.
On appeal from his conviction for driving while under the
influence of alcohol, in violation of Code § 18.2-266, Dane Lesley
Chase contends the trial court erred by admitting into evidence a
breath test certificate showing his blood alcohol content. He
argues that the Commonwealth violated his federal and state due
process rights by denying him a potentially exculpatory blood
test. Because he did not raise the state due process claim at
trial, he is barred by Rule 5A:18 from asserting that claim on
appeal. Because his federal due process rights were not violated
and the admission of the breath test certificate was proper, we
affirm the judgment of the trial court.
I. BACKGROUND
On January 19, 2000 Chase was stopped by Trooper William
Pippen on Route 60 in Powhatan County for traveling sixty-nine
miles per hour in a posted fifty-five miles per hour zone.
Trooper Pippen detected an odor of alcohol and observed that
Chase's face was flushed, his eyes were glassy, and he had
difficulty finding his driver's license. Chase admitted that he
had drunk three or four beers. He failed several field sobriety
tests.
Chase was arrested for driving while under the influence of
alcohol and was transported to the Powhatan County Sheriff's
Office where he submitted to a breath test pursuant to Code
§ 18.2-268.2. The certificate of analysis reported a blood
alcohol level of 0.10%. Following the breath test and while still
in custody in the magistrate's office, Chase called his attorney
who asked Trooper Pippen to transport Chase to the hospital for an
independent blood test. Trooper Pippen refused, stating that
Chase had already taken the breath test.
At trial, Chase moved to suppress the breath test blood
alcohol certificate, arguing that the Commonwealth had denied him
his constitutional right to due process. The court denied the
motion, and the certificate was admitted into evidence. Chase
renewed the objection at the close of his case. The trial court
again overruled the objection and convicted Chase of driving while
under the influence of alcohol, first offense.
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II. STATE CONSTITUTIONAL CLAIM
On appeal, Chase contends that his due process rights under
Article I, Section 8, of the Constitution of Virginia were
violated.
Rule 5A:18 provides, in relevant part:
[n]o ruling of the trial court . . . will be
considered as a basis for reversal unless
the objection was stated together with the
grounds therefor at the time of the ruling,
except for good cause shown or to enable the
Court of Appeals to attain the ends of
justice.
At trial, Chase asserted the violation of his right under
the Fourth and Fourteenth Amendments of the United States
Constitution to develop potentially exculpatory evidence.
However, he raised no similar state constitutional claim.
Consequently, he failed to preserve a state constitutional issue
for appeal.
III. VIRGINIA DUI TESTING AND DUE PROCESS
Code § 18.2-268.2 governs the testing of individuals to
determine the drug or alcohol content of their blood. That
section provides in pertinent part that:
A. Any person, whether licensed by Virginia
or not, who operates a motor vehicle upon a
highway, as defined in § 46.2-100, 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 . . . within
two hours of the alleged offense.
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B. Any person so arrested for a violation
of § 18.2-266 (i) or (ii) or both, or
§ 18.2-266.1 or of a similar ordinance 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.
Id.
Code § 18.2-268.2 provides that persons arrested for
driving under the influence of alcohol be administered only a
breath test to determine blood alcohol content. The statute
provides two exceptions. When a breath test is unavailable or
the accused is physically unable to submit to a breath test, a
blood test must be provided. In this case, neither exception
applied. Following his arrest, Chase was transported to the
sheriff's office where a breath test was available. He took it.
He was entitled only to the breath test, which was administered
by Trooper Pippen in compliance with the statute.
The question remains whether compliance with Code
§ 18.2-268.2 nonetheless denied Chase due process. Chase argues
that the Fifth and Fourteenth Amendment Due Process Clauses
guarantee a defendant the right to develop and present evidence
in his defense. We agree. He further argues that this due
process right was violated when Trooper Pippen refused to
transport him to the hospital to have an independent blood test
administered, thus denying him the opportunity to obtain
potentially exculpatory evidence. We disagree.
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In Winston v. Commonwealth, 188 Va. 386, 49 S.E.2d 611
(1948), the Supreme Court discussed this issue in addressing
Article I, Section 8 of the Virginia Constitution, which
provides the same due process guarantee found in the United
States Constitution. 1 Following his arrest for driving while
intoxicated, Winston asked to be taken to a physician for a test
to determine whether he was intoxicated. The arresting officer
refused. On appeal of his conviction, Winston contended that
the officer's refusal to take him to a physician deprived him of
potentially exculpatory evidence. Id. at 388-89, 49 S.E.2d at
612-13.
Rejecting Winston's claim, the Supreme Court said, "there
was no denial of the right of the accused to produce evidence in
his favor." Id. at 391, 49 S.E.2d at 613. The trooper had not
refused to allow Winston to contact a physician to arrange for
an examination, nor had he denied Winston the opportunity to be
examined in jail. The Court concluded that "[i]n this situation
the duty of engaging the services of a physician to make such an
examination, and of thus securing his testimony to establish the
defendant's sobriety, was on the defendant and not on the
officers." Id. at 392, 49 S.E.2d at 614. Due process imposes
1
Article I, Section 8 of the Virginia Constitution states
"[t]hat in criminal prosecutions a man hath a right . . . to
call for evidence in his favor, . . . . He shall not be
deprived of life or liberty, except by the law of the land or
the judgment of his peers, . . . ."
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no affirmative duty upon the police to help defendants obtain
evidence that is potentially exculpatory. 2
Other states have ruled similarly. In New Jersey v.
Ettore, 548 A.2d 1134 (N.J. Super. Ct. 1988), Ettore was
arrested for driving while intoxicated. After two breath tests
were performed, Ettore telephoned her attorney, asking that he
take her to have a blood test performed. Being unable to do so,
Ettore's attorney asked the arresting trooper to take Ettore to
the hospital. The trooper refused. The attorney then asked
whether a taxi could be called. The trooper replied that it was
against state police policy to release an intoxicated person
unaccompanied by a responsible escort. Id. at 1136.
Ettore sought to exclude the results of the two
breathalyzer tests. She claimed violations of her statutory
right to an independent blood test as provided by New Jersey law
and of her due process rights under the New Jersey and United
States Constitutions. Id. at 1135. The New Jersey Superior
Court found no basis for suppressing the results of the breath
tests. It held:
[P]olice authorities were under no statutory
duty to arrange for the securing of a blood
2
Winston's conviction was reversed for denial of other
fundamental rights. The arresting officer failed to take him
promptly before a judicial officer. He was initially denied the
opportunity for bail, resulting in his inability to obtain
material evidence. Those issues are not present in this case.
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test by a defendant charged with drunk
driving.
Id. at 1137 (citation omitted). The New Jersey court further
held
[a] policy which allows a defendant to
contact by telephone his or her attorney or
family member and to be released to such an
escort in furtherance of the defendant's
exercise of his or her right to arrange for
independent testing does, in our view,
provide a procedure affording the defendant
reasonable access to such testing.
Id. See also State v. Sidmore, 951 P.2d 558, 569-70 (Mont.
1997) (officers have no duty to assist an accused in obtaining
exculpatory evidence; they need only avoid interfering with the
accused's efforts to obtain an independent sobriety test); State
v. Leonard, 725 P.2d 493, 498 (Ariz. Ct. App. 1986) (police
officers are not required to take the initiative or even to
assist in procuring such evidence; the state may not
unreasonably interfere with an accused's attempts to obtain
blood test near the crucial time of arrest); State v. Dake, 529
N.W.2d 46, 49 (Neb. 1995) (while police cannot hamper a
motorist's efforts to obtain independent testing, they are under
no duty to assist in obtaining such testing beyond allowing
telephone calls to obtain the test).
Chase was denied no fundamental right to due process when
Trooper Pippen refused to transport him to the hospital for an
independent blood test. Following the administration of the
breath test, Chase was permitted to speak to his attorney. He
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was not prevented from leaving the sheriff's office. He had the
opportunity to secure transportation and to obtain a blood test
on his own. Trooper Pippen was not obligated to help Chase do
so. The trial court's admission of the breath test blood
alcohol certificate was proper. Accordingly, we affirm the
judgment of the trial court.
Affirmed.
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