Bristol v. Com.
| Decision Date | 31 January 2006 |
| Docket Number | Record No. 1477-04-1. |
| Citation | 47 Va. App. 584,625 S.E.2d 676 |
| Court | Virginia Court of Appeals |
| Parties | Joshua BRISTOL v. COMMONWEALTH of Virginia. |
Timothy V. Anderson (Anderson & Good, P.C., on brief), Virginia Beach, for appellant.
Josephine F. Whalen, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on briefs), for appellee.
Present: FITZPATRICK, C.J., BENTON, ELDER, FRANK, HUMPHREYS, CLEMENTS, FELTON, KELSEY, McCLANAHAN, HALEY, JJ., and BUMGARDNER, Retired Judge.*
UPON A REHEARING EN BANC
Joshua Bristol was convicted in a bench trial of driving under the influence of alcohol, in violation of Code § 18.2-266, and 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 offenses. See Code §§ 18.2-268.2 and 18.2-269. On appeal, Bristol contends the trial court erred in admitting the certificate of analysis into evidence because he was not validly arrested before the blood sample referenced in the certificate of analysis was withdrawn from him, as required under the implied consent law. On May 3, 2005, a unanimous panel of this Court agreed with Bristol and reversed his convictions. Bristol v. Commonwealth, 45 Va.App. 534, 543-44, 612 S.E.2d 244, 248 (2005). On May 31, 2005, we granted the Commonwealth's petition for a rehearing en banc, stayed the mandate of the panel decision, and reinstated the appeal. Bristol v. Commonwealth, 45 Va.App. 673, 613 S.E.2d 480 (2005). Concluding, upon rehearing en banc, that Bristol was validly arrested prior to the removal of his blood, we affirm the judgment of the trial court and Bristol's convictions.
"Under familiar principles of appellate review, we view the evidence and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party that prevailed below." Banks v. Commonwealth, 41 Va. App. 539, 543, 586 S.E.2d 876, 877 (2003). So viewed, the evidence presented to the trial court established that, on the evening of July 4, 2003, Joshua Bristol drove his motorcycle to a bar in Portsmouth called the Three Cheers Lounge, where he and his friends drank alcohol, played pool, and socialized for about three hours. Bristol exited the bar around 1:45 a.m., as it was in the process of closing. As Bristol walked from the bar, Debra Fly asked if he would give her a ride on his motorcycle. Bristol agreed.
With Fly sitting behind him on the motorcycle, Bristol circled the bar twice, weaving around the parking lot at speeds estimated to be between 50 and 80 m.p.h. and nearly hitting two pedestrians. Completing his second circuit of the parking lot, Bristol drove directly toward a group of people standing near the curb outside the front of the bar. Without appearing to slow down, the motorcycle struck April Mapp and knocked her into the air. Bristol lost control of the motorcycle, causing him and Fly to fall off the vehicle.
Responding to a report of an accident with injuries, Portsmouth Police Officer J.M Doyle arrived at the scene at approximately 1:56 a.m. He observed Bristol lying near his motorcycle in the parking lot at the front of the bar. He was conscious but appeared to have some "scrapes and bruises" on his face. Doyle also observed Mapp lying in the parking lot approximately fifty feet from Bristol's location. She appeared to have "head injuries." Before Doyle reached the injured, emergency medical personnel arrived and began treating them.
The paramedic who attended Bristol at the scene of the accident and in the ambulance on the way to the hospital observed that, although alert and in stable condition when placed in the ambulance, Bristol "seemed a little bit confused" and smelled of alcohol. She asked Bristol if he had been drinking, and Bristol responded that he had.
Interviewing witnesses outside the bar, Officer Doyle learned that, after exiting the bar shortly before it closed at 2:00 a.m., Bristol got on his motorcycle with a passenger behind him and drove "through the parking lot showing off." Doyle also learned that Bristol then drove "toward[] a crowd of people, at which time the accident occurred."
After speaking with the people outside the bar, Officer Doyle went to the hospital to check on Bristol's injuries and speak with him about the accident. Doyle arrived at Bristol's bedside in the trauma unit of the hospital around 2:50 a.m. In speaking with Bristol, Doyle noticed that Bristol's speech was "slightly slurred." Doyle also observed that Bristol had an odor of alcohol about his person that was "quite strong." At 2:56 a.m., Doyle told Bristol he was under arrest for suspicion of driving under the influence of alcohol. Reading from a prepared card, Doyle then advised Bristol of Virginia's implied consent law, in pertinent part, as follows:
Any person who operates a motor vehicle upon a highway . . . in this Commonwealth is deemed thereby as a condition of such operation to have consented to have samples of his blood and breath taken for chemical test to determine the alcohol and drug content of his blood if arrested within three hours of the alleged offense or violation of 18.2-266. . . . He shall submit to a breath test unless the test is unavailable or you are physically unable to comply, in which case a blood test will be given.
See Code § 18.2-268.2. Doyle also informed Bristol that a "[c]onviction of unreasonably refusing to [submit to a] chemical test constitutes grounds for suspension of the privilege to operate a motor vehicle in this Commonwealth for a period of one year." See Code § 18.2-268.3. Bristol indicated he understood the implied consent law and agreed to have his blood drawn. Doyle testified he did not take Bristol into physical custody upon placing him under arrest because Bristol was still "being seen" by the hospital's medical personnel.
At 3:05 a.m., Bristol signed a consent form provided by the hospital, giving his permission to have his blood withdrawn. He then accompanied Officer Doyle to the hospital's emergency room. The medical technologist who was to withdraw Bristol's blood took the consent form and asked Bristol if he understood that the blood was being drawn for the police officer. Bristol said that he understood and that he consented. The medical technologist drew the first vial of blood from Bristol's arm at 3:49 a.m. and completed the process at 3:53 a.m., at which time she sealed the two vials in boxes and gave them to Doyle.
Officer Doyle then gave the vials of blood to Officer James Eberts, the chief investigating officer in the case, who had arrived at the hospital as Doyle was arranging for the withdrawal of Bristol's blood. Eberts attempted to speak with Bristol in the emergency room but found him "incoherent" and not wanting to talk. According to Eberts, Bristol's "speech was slurred and slow" and he appeared to be in pain from the accident. Eberts testified Bristol was not "physically" placed under arrest that night "because he was in the hospital for treatment." Upon returning to the police station, Eberts completed his accident report, filled out the paperwork for the drawn blood, and turned the vials over to the property and evidence department, which mailed them to the Division of Forensic Science in Richmond.
On July 7, 2003, Officer Eberts returned a phone call from Bristol's wife, who wanted to speak with the officer about the accident. After Bristol's wife arranged to meet with Eberts at the police station, Bristol, who had been discharged from the hospital, "also got on the line and agreed" to meet with Eberts at the police station. The next day, Bristol and his wife went to the police station and spoke with Eberts. When the meeting ended, Bristol was not physically taken into custody and was "free to go."
On August 18, 2003, the Division of Forensic Science filed a certificate of analysis indicating that laboratory analysis of the blood withdrawn from Bristol at 3:49 a.m. on July 5, 2003, revealed that Bristol had a blood alcohol content at the time of .11% by weight by volume. On September 4, 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 turned himself in at the police station, at which time he was physically taken into custody by the police.
At trial, Bristol objected to the introduction of the certificate of analysis, arguing, inter alia, that the certificate was inadmissible under the implied consent law because he had not been validly arrested at the time the blood sample was taken. There was no arrest at the hospital, he argued, because the police lacked probable cause and never restrained him or took him into physical custody. The trial court overruled the objection and admitted the certificate of analysis into evidence. An expert forensic toxicologist then testified that no person with a blood alcohol content of .11% by weight by volume could "safely operate a motor vehicle."
The trial court subsequently convicted Bristol of the charged offenses, and this appeal followed.
Bristol contends on appeal, as he did below, that he was not validly arrested before his blood was withdrawn for chemical testing, as required by the implied consent law. Bristol argues his purported arrest in the hospital by Officer Doyle was not valid, for purposes of the implied consent law, because Doyle lacked probable cause to arrest him and "did nothing to secure [that] arrest." He was not validly arrested within the meaning of the implied consent law, he asserts, until he turned...
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Bristol v. Commonwealth
...three hours of the offenses as a result of submitting to a police officer's authority at the hospital. Bristol v. Commonwealth, 47 Va.App. 584, 603, 625 S.E.2d 676, 685 (2006). Bristol appeals from the Court of Appeals' The evidence at trial showed that on July 4, 2003, Bristol and his frie......