Opinion
Record No. 1972-91-2
July 27, 1993
FROM THE CIRCUIT COURT OF LANCASTER COUNTY JOSEPH E. SPRUILL, JR., JUDGE.
Richard Herndon Harfst, for appellant.
Robert B. Condon, Assistant Attorney General (Mary Sue Terry, Attorney General; Katherine B. Toone, Assistant Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
John Gray was convicted in a bench trial of driving while intoxicated, his second offense. On appeal, Gray contends that the charge should have been dismissed when the Commonwealth failed to make his independent blood test results available. We agree and reverse.
On January 25, 1991 at 11:48 p.m., Lancaster County Deputy Ronald Hudson noticed that Gray's vehicle did not display a front tag. Hudson observed the car "weaving back and forth between the lines. [Gray's car] would touch the middle line and then go back to the white line. . . . He did this approximately three times" in a one and one-half mile span. After stopping the car, Hudson walked up to Gray's window and smelled "a strong odor of alcohol coming from about his person." Gray admitted that he had drunk some alcoholic beverage.
Exiting his car, Gray "stumbled forward catching himself on the door." In field sobriety tests, Gray successfully walked heel to toe in a straight line for nine steps; when asked to tilt his head back and touch the tip of his nose with either his "right or left index finger," Gray twice touched the side of his nose using both hands. However, on the third attempt he performed correctly. Gray failed to correctly recite the alphabet, leaving out the letter "F" and stopping when he got to the letter "M." After offering Gray a "preliminary screening device," Hudson placed Gray under arrest. Hudson stated that Gray was neatly dressed and cooperative when stopped.
Hudson informed Gray of the implied consent law, and Gray elected to take a blood test. Hudson drove Gray to Rappahannock General Hospital where two blood samples were taken. Hudson advised Gray of his right to an independent lab analysis, and Gray elected Northern Virginia Doctors Hospital Laboratory, 601 South Carlin Spring Road, Arlington, Virginia, a lab listed on the form presented to him.
Prior to the trial, Gray sent a certified letter to the Commonwealth's Attorney, dated September 9, 1991, requesting the results of his blood tests pursuant to former Code § 18.2-268(M), now Code § 18.2-268.7. By letter dated September 10, 1991, the Commonwealth's Attorney sent Gray a copy of the certificate of analysis of the first sample of Gray's blood received from the state laboratory, but not the second sample sent to the independent laboratory.
When the Commonwealth attempted to admit into evidence the vial of blood and certificate of analysis of the first sample, Gray objected, stating that he had not received results from the independent test. Hudson admitted that, "after the two samples came back and [he] became aware that one of them had been returned without analysis . . . [he] did not attempt to find out why the results of one of the tests was not available." The record shows that the form given to Gray for requesting independent lab analysis had a revision date of June 22, 1989, and that another form used by the Lancaster County Sheriff's Department has a revision date of December 4, 1990 (seven weeks before appellant's January 25, 1991 arrest). The 1990 revised form does not list Northern Virginia Doctors Hospital Laboratory as an approved independent lab. The record indicates that the second sample was returned to the court unopened and untested. The Commonwealth did not request a continuance to obtain independent test results of the sample.
Hudson testified that, to the best of his knowledge, no one attempted to find out why there were no test results available from Northern Virginia Doctors Hospital Laboratory.
The trial judge sustained Gray's objection to the admission of the Commonwealth's test results and ruled that under Wendel v. Commonwealth, 12 Va. App. 958, 407 S.E.2d 690 (1991), "if the defendant is denied his blood analysis, then the Commonwealth's analysis should not be received in evidence."
Hudson was excused, and the Commonwealth rested, at which time Gray moved to strike all of the Commonwealth's evidence. Defense counsel asserted that Gray was denied the "safeguard of the defense's right to certain kinds of evidence" which was under the Commonwealth's control. The trial judge overruled the motion to strike. Gray presented no evidence and renewed his motion to strike and to dismiss the case. The trial judge took the case under advisement, and, by letter opinion to counsel dated September 18, 1991, ruled that the court could properly consider other evidence of intoxication, viz., the testimony of Deputy Hudson. Relying upon Brooks v. City of Newport News, 224 Va. 311, 295 S.E.2d 801 (1982), Gray was found guilty. The trial judge explained:
The officer's description of [appellant's] demeanor at the time of his arrest clearly establishes that [he] was under the influence at the time[, t]here being no room for reasonable doubt about Gray's actual condition at the time of his arrest. . . .
We find that the decision in this case is controlled by the principles established in Kemp v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (1993). In Kemp, this Court held that "when an accused asks that his blood sample be sent to an independent laboratory for testing and an independent analysis is not available at trial, the Commonwealth has the burden to explain the absence of independent test results and show that it substantially complied with the steps relating to the taking, handling, identification, and disposition of defendant's blood and/or breath sample. The Commonwealth must prove that the unavailability of the independent test results is not due to unreasonable conduct by the Commonwealth." ___ Va. App. ___, ___ S.E.2d at ___.
Former Code § 18.2-268(G), now Code § 18.2-168.6, requires the arresting or accompanying officer to give to the accused a form provided by the Division which shall set forth the procedure to obtain an independent analysis of the blood in the second container. The accused must also be given a list of those laboratories approved by the Division and their addresses. Here, the police officer gave Gray an out-of-date list of approved independent laboratories. Gray chose Northern Virginia Doctor's Hospital, a laboratory on the list; however, it was no longer an approved laboratory. The hospital returned the container to the court, unopened and untested. The Commonwealth took no further action to have the sample tested in accordance with the statutory procedure. Such conduct on the part of the Commonwealth effectively foreclosed any possibility that Gray would receive the independent laboratory analysis to which he was entitled. We find that the Commonwealth's evidence did not prove that the unavailability of the independent test results was due to reasonable conduct on the part of the Commonwealth or its agents.
"When the Commonwealth cannot prove that it substantially complied with the statutory procedures referred to in Code § 18.2-268(Z) [now Code § 18.2-268.11], the Commonwealth is foreclosed from prosecution." Kemp, ___ Va. App. at ___, ___ S.E.2d at ___; see also Wendel, 12 Va. App. at 965, 407 S.E.2d at 694.
Reversed and dismissed.