Caldwell v. Com.

• Decision Date: 15 June 1964
• Docket Number: No. 5736,5736
• Citation: 136 S.E.2d 798,205 Va. 277
• Court: Virginia Supreme Court
• Parties: WARREN HOWARD CALDWELL v. COMMONWEALTH OF VIRGINIA. Record

Page 798

136 S.E.2d 798

205 Va. 277

WARREN HOWARD CALDWELL v. COMMONWEALTH OF VIRGINIA.

Record No. 5736.

Supreme Court of Appeals of Virginia

June 15, 1964.

Dabney Overton and Blake T. Newton (Overton & Overton, on brief), for the plaintiff in error.

R. D. Mcllwaine, III, Assistant Attorney General (Robert Y. Button, Attorney General, on brief), for the Commonwealth.

JUDGE: SNEAD

SNEAD, J., delivered the opinion of the court.

Warren Howard Caldwell, defendant, was found guilty on a warrant charging that he did 'operate a motor vehicle on the highways of the State of Virginia while under the influence of intoxicating beverages' (Code, § 18.1-54), and that he had been previously convicted of the same offense within a period of ten years. The jury fixed his punishment at a fine of $200 and by confinement in jail for a term of one month. Code, § 18.1-58. The case is before us upon writ of error and supersedeas to the judgment of conviction entered on the verdict.

On April 1, 1963, at approximately 7:45 p.m. trooper P.R. Jeffrey, Jr., was proceeding north on U.S. Route No. 17 in Essex county. He was 'attempting to clock' the speed of a station wagon. When the speed of that vehicle was slackened he observed a pick-up truck in front of it traveling in the same direction, which was being driven by Caldwell, the defendant, over into the southbound lane and back into the northbound lane. The trooper was unable to pass defendant's truck and waited until it reached Brays Fork, a short distance away. There defendant turned his vehicle into a service station and ran it up on a curb between eight and twelve inches in height. The truck 'rolled back' off the curb and defendant drove it again onto the curb. According to the trooper this performance occurred three times. The defendant alighted from his vehicle and the trooper observed that he was 'unsteady on his feet, his eyes were glassy, and he had thick speech.' A 'faint odor of alcohol' was detected on his breath. A bottle of vodka was found on he seat of the truck and defendant stated that he had 'had a couple of drinks with a war buddy of his' from this bottle.

The trooper informed defendant that he was being placed under arrest for operating his vehicle under the influence of alcohol, and that 'a new Virginia law required you to submit to a blood test.' The trooper asked defendant 'would he like to take one' and he replied: '[Yes,] let's go and get it over with now.'

The trooper carried defendant to a justice of the peace who issued a warrant charging him with the offense for which he was tried and convicted. From there he was taken to the office of Dr. Douglas Andrews in Tappahannock where 20 c.c. of defendant's blood was extracted for chemical analysis.

The defendant testified that it was his intention to proceed south on Route No. 360 towards Richmond; that by mistake he took U.S. Route 17 where it intersects with Route No. 360; that after he had traveled a short distance he turned around and proceeded back, 'looking at the signs' in order to turn left on Route No. 360; that while looking for the signs he 'probably' crossed over the center line of the highway, and that he drove into the service station to get his bearings and information about making the desired turn. He further testified that he was not 'intoxicated', and that an operation for varicose veins in his leg affected his ability to walk.

In his assignments of error defendant contends that the court erred in admitting in evidence the results of the blood test, and in refusing to strike the Commonwealth's evidence and dismiss the prosecution because (1) the Commonwealth failed to comply with the provisions of Code, § 18.1-55 ¹, the 'Implied Consent Law', and (2) he 'was deprived of his right not to give evidence against himself, as guaranteed to him under the Constitutions of Virginia and the United States.'

The defendant contends that the Commonwealth failed to comply with Code, § 18.1-55 in that (1) the trooper failed to inform him of the provisions of the law; (2) the doctor who extracted his blood did not comply with the plain mandate of the statute; (3) he was deprived of his right to have a separate sample of his blood analyzed.

The defendant argues that the trooper failed to advise him 'that he had the right to refuse to take such blood test; that he had the right to request same within a two-hour period; that if practicable, he had the right to have a physician of his own choice administer the blood test; or that he would be entitled to know the results of the test.' He testified that he was told by the trooper that 'it was a new State law that you had to take' a blood test, and that he would not have taken the test had he not been informed by the trooper that he was required under the law to do so. Thus, he says, he cannot be deemed to have consented to submit to the test, or to have waived his right not to consent.

Under the statute any person who operates a motor vehicle upon a public highway in this Commonwealth shall be deemed to have consented to, and shall be entitled to, have a sample of his blood taken for a chemical analysis to determine its alcoholic content when arrested for operating a motor vehicle while under the influence of alcohol. In Walton v. City of Roanoke, 204 Va. 678, 133 S.E.2d 315, we said that 'the defendant was not compelled under $18.1-55 to submit to the blood test. He had a choice of either allowing the test to be made or refusing it.' We adhere to that holding. However, the statute does require an accused to submit to a blood test in order to avoid prosecution for refusing to take it, which may result in the suspension of his operator's license if such refusal is found to be unreasonable. He has the power to refuse to submit to the test but no right to refuse it. Since there exists no 'right to refuse' to submit to a blood test, the trooper was without authority to advise defendant that he had such a right. Furthermore, defendant orally consented to submit to the test so that it was not incumbent upon the trooper to advise him of the consequences if he refused. Had defendant refused to submit to the test, it then would have been the duty of the trooper to advise the accused that 'refusal to do so constitutes grounds for the revocation of the privilege of operating a motor vehicle upon the highways of this State'.

There is no provision in the statute which expressly requires that the arresting officer advise the accused of his rights to request a test within a two-hour period; to have, if practicable, a physician of his own choice to extract his blood, or to know the results of the test. These provisions are available to an accused but are merely directory, not mandatory, insofar as they apply to the arresting officer. We conclude that the failure of the trooper to inform defendant of the provisions of the statute complained of did not constitute a lack of compliance.

It is next contended that the doctor failed to comply with the mandate of the statute, because the record does not show that the instruments he used in extracting defendant's blood were sterilized and because he did not personally perform certain acts prescribed by the statute. Defendant makes no claim that the containers were not especially equipped with a sealing device and were not sealed so as to prevent tampering.

The statute requires the using of 'some type of a cleanser or sterilizer for the instruments used and for the part of the body from which the blood is taken, other than alcohol or other substance which might in anyway affect the accuracy of the test,' in extracting blood for analysis.

Dr. Andrews testified emphatically that he washed defendant's arm with 'an antiseptic surgical soap', which contained no alcohol or other substance which might in any way affect the accuracy of the test. With respect to sterilization of the instruments used, he had this to say:

'By Mr. Overton:

* * *

'Q. When you withdrew the blood sample, just how did you do that?

'A. The patient was seated in a chair, his arm was resting on our examining table, and a tourniquet, a stretchable rubber strip, was placed around his upper arm. This makes the veins stand out so I can better find the vein, and cause less pain. The accused's arm was then wiped off and washed off thoroughly with a surgical soap. The syringe was taken from its sterile container. It was a sterile needle. It was placed on the syringe -- the needle was -- then inserted into the vein, and twenty CC's of blood were withdrawn from the patient's vein.

* * *

'Q. Dr. Andrews, I ask you if you can say of your own knowledge the instruments you used were sterilized?

'A. The instruments that I used were in a sterile container where sterile instruments are kept.

'Q. I ask you again, sir, can you say of your own knowledge that those instruments were sterilized?

'A. I cannot say of my own knowledge they were sterilized. They were in a container where the sterilized instruments are kept.

* * *

'By the Court:

'Q. Was the apparatus working you stuck it in?

'A. They are sterilized in a steam-a large steam apparatus, under pressure. They are then taken out and placed with transfer forceps again in a sterile container, which contains several syringes and several needles and all.

'Q. Was the apparatus working, was it on this day?

'A. Yes, sir.

'Q. And you put them in the apparatus provided for this?

'A. They were in this container, in this sterile container, and I took them from the sterile container.

'Q. Did you have any reason to believe that they weren't all right?

'A. No, sir. I did not.

* * *

'By Mr. Carlton:

* * *

'Q. What is the office routine?

'A. The routine is that when a syringe has been used that it is placed in the cleaning solution in a separate container, a wet container. Mrs. Glanagan [nurse] takes this container, takes the syringes out, washes them in water, and places them in our pressure apparatus...