Bristol v. Com.

• Decision Date: 03 May 2005
• Docket Number: Record No. 1477-04-1.
• Citation: 45 Va. App. 534,612 S.E.2d 244
• Parties: Joshua BRISTOL v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 244

612 S.E.2d 244

45 Va. App. 534

Joshua BRISTOL v.COMMONWEALTH of Virginia.

Record No. 1477-04-1.

Court of Appeals of Virginia, Chesapeake.

May 3, 2005.

Timothy V. Anderson(Anderson Good, P.C., on brief), Virginia Beach, for appellant.

Josephine F. Whalen, Assistant Attorney General(Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: Judges BENTON, FRANK and Senior Judge OVERTON.

JAMES W. BENTON, JR., Judge.

The trial judge convicted Joshua Bristol of driving under the influence of alcohol in violation of Code§ 18.2-266 and of maiming another person while driving under the influence of alcohol in violation of Code§ 18.2-51.4.At trial, the Commonwealth introduced into evidence a certificate of blood analysis to establish a rebuttable presumption that Bristol was intoxicated at the time of the alleged offense.SeeCode§§ 18.2-266(i) and 18.2-268.2.Bristol contends the trial judge erred in ruling he was arrested prior to removal of his blood and, consequently, erred in ruling the certificate was admissible under the implied consent statute.We agree and, for the reasons that follow, reverse his convictions and remand for a retrial if the Commonwealth be so advised.

I.

On the evening of July 4, 2003, Joshua Bristol and two friends went to the Three Cheers Lounge, where they drank alcohol, played pool, and socialized for about three hours.Bristol exited the Lounge between 1:45 and 2:00 a.m., when it was closing.As Bristol walked to his motorcycle, Debra Fly asked if he would give her a ride on his motorcycle.Bristol agreed.After Fly mounted the motorcycle, Bristol circled the parking lot at speeds estimated to be between 50 and 80 m.p.h. Completing his circuit of the parking lot, Bristol drove toward a crowd of people standing near the curb.The motorcycle struck a bystander, April Mapp, and knocked her into the air.Bristol lost control of the motorcycle, causing injury to himself and Fly when the motorcycle fell.

After police and paramedical personnel arrived, the paramedics took Mapp to a hospital.She suffered serious injuries to her head and brain and a broken leg.The paramedic who attended Bristol testified he had a head injury and smelled of alcohol.When he asked Bristol if he had been drinking, Bristol responded that he had.The paramedic took him to another hospital.

Officer Doyle arrived at the parking lot while the paramedics were attending Bristol.After interviewing witnesses at the parking lot, Officer Doyle went to the hospital to see Mapp and then went to the other hospital to see Bristol.¹Officer Doyle testified that at 2:56 a.m. he orally informed Bristol that he was under arrest for suspicion of driving under the influence of alcohol and read from a card explaining to Bristol the implied consent statute.He testified that Bristol said he understood what the officer read to him and consented to having his blood drawn.Officer Doyle testified that he did not take Bristol into physical custody, explaining that Bristol was then being treated in the trauma unit by medical personnel.He took no other action to arrest Bristol.At 3:05 a.m., Bristol signed a consent form the hospital provided to Officer Doyle.

When Bristol was moved from the trauma unit to the emergency room, a medical technician prepared to draw his blood.Looking at the consent form, she asked Bristol his name and social security number to verify that she was drawing blood from the right person.She also asked if he understood that she was drawing blood for the officer.Bristol said that he understood she was doing that.²After she drew the blood from Bristol's arm, she sealed the vials in boxes and gave them to Officer Doyle.

Officer Doyle gave the vials of blood to Officer James Eberts, his supervisor, who was present when the technician withdrew the blood.Officer Doyle then left the hospital and went to the police station where he prepared a written statement.The statement confirms that he read Bristol the implied consent law and that Bristol agreed to having his blood drawn.It does not mention that he informed Bristol he was under arrest.

Officer Eberts testified he was the chief investigating officer for this case.At the parking lot, witnesses reported to him that Bristol was driving erratically and too fast, "struck a pedestrian who was on the lot causing motorcycle to slide, ejecting [Bristol] and the passenger."The witnesses told him that Mapp was the pedestrian and Fly was the passenger.Officer Eberts then went to the hospital and arrived as Officer Doyle was arranging for the withdrawal of Bristol's blood.Officer Eberts said he"tried to speak with Bristol, but he was incoherent."Bristol's "speech was slurred and slow and he was hurting."Officer Eberts testified Bristol was not arrested that night, explaining he"was not physically placed under arrest because he was in the hospital for treatment."Officer Eberts caused the vials eventually to go to the Division of Forensic Science for testing.

After Bristol received treatment at the hospital, he was discharged and went home.Two days after the accident, Officer Eberts spoke with Bristol by telephone and asked Bristol if he would "come visit [Officer Eberts] at the office."When Bristol voluntarily appeared at the police station a day later, Officer Eberts interviewed him.He did not inform Bristol that he had been arrested or that he was under arrest.He testified Bristol was free to leave and did leave.

Two months later on September 9, 2003, the grand jury indicted Bristol for driving under the influence of alcohol in violation of Code§ 18.2-266 and maiming another while driving under the influence of alcohol in violation of Code§ 18.2-51.4.On September 11, 2003, Bristol went to the police station, where a police officer arrested him and took him into custody.At trial, the judge admitted in evidence the certificate of analysis over Bristol's objection.It showed a blood alcohol content of .11. In addition to the certificate, an expert forensic toxicologist testified that at such a concentration, no person could safely operate a motor vehicle.At the conclusion of the evidence, the trial judge convicted Bristol of the offenses.

II.

Bristol contends the officer did not validly arrest him prior to the removal of his blood, and he argues, therefore, the trial judge improperly admitted into evidence the certificate of analysis.The Commonwealth responds that the evidence proved a valid arrest, but, even if the certificate was inadmissible, the error was harmless.

We first turn to the statute.Code§ 18.2-268.2 provides in pertinent part as follows:

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 for violation of §§ 18.2-266,18.2-266.1 or § 18.2-272 or of a similar ordinance within three hours of the alleged offense.

A valid arrest must occur within three hours of the charged offense for a person to be deemed to have given his or her "implied consent" to have a blood sample taken under the statute.Code§ 18.2-268.2."An untimely arrest ... results in exclusion of the certificate of analysis of the blood."Overbee v. Commonwealth,227 Va. 238, 242, 315 S.E.2d 242, 243(1984).Likewise, "if the arrest is not lawful, consent for the blood alcohol test is not implied, and the results of any such test are inadmissible to prove intoxication."Smith v. Commonwealth,32 Va.App. 228, 233-34, 527 S.E.2d 456, 459(2000).When, as here, the issue on appeal concerns the validity of an arrest, we review that issue de novo.Brown v. Commonwealth,27 Va.App. 111, 117, 497 S.E.2d 527, 530(1998).See alsoUnited States v. Hamlin,319 F.3d 666, 671(4th Cir.2003)(holding that on appeal we review de novo the legal determination whether the officer's actions amount to an arrest).

"With a few statutory exceptions,... the common law relating to arrest is the law on that subject in Virginia."Galliher v. Commonwealth,161 Va. 1014, 1021, 170 S.E. 734, 736(1933).An arrest requires "`an assertion of authority and purpose to arrest followed by submission of the arrestee.'"California v. Hodari D.,499 U.S. 621, 626, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690(1991)(emphasis added)(quotingRollin M. Perkins, The Law of Arrest, 25 IowaL. Rev. 201, 206(1940)).Applying these principles, we have previously held that "[t]he immediate physical ability to arrest, without more, was not sufficient to effectuate an arrest."Cavell v. Commonwealth,28 Va.App. 484, 486, 506 S.E.2d 552, 553(1998)(en banc).See alsoHoward v. Commonwealth,210 Va. 674, 677, 173 S.E.2d 829, 832(1970)("Ordinarily, an arrest is made by the actual restraint of the person of the defendant or by his submission to the custody of an officer.")."At common law, four requisites are involved in arrest: (1) A purpose to take the person into custody, (2) under real or pretended authority, (3) resulting in actual or constructive seizure or detention of his person, (4) so understood by the arrestee."Perkins, supra at 208.The person to be arrested is entitled to know of "(1) the intention to take him into the custody of the law, (2) the authority for the arrest, and (3) the reason therefor."Id. at 249.Thus, at common law, mere words do not constitute an arrest.Cavell,28 Va.App. at 487, 506 S.E.2d at 553.

Although Officer Doyle testified that he orally told Bristol he was under arrest, that did not suffice to constitute an arrest.Id.The record proves that neither Officer Doyle nor Officer Eberts took actions to actually arrest Bristol or to objectively manifest an arrest.Moreover, their actions do not...