Crews v. Com.

• Decision Date: 12 October 1964
• Citation: 138 S.E.2d 265,205 Va. 547
• Parties: Earl David CREWS v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 265

138 S.E.2d 265

205 Va. 547

Earl David CREWS v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

Oct. 12, 1964.

Philip M. Sadler; Robert J. Ingram, Pulaski (Gilmer, Harman & Sadler, Pulaski, on brief), for plaintiff in error.

R. D. McIlwaine, III, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, WHITTLE and CARRICO, JJ.

CARRICO, Justice.

Earl David Crews, the defendant, was convicted by the trial court, trying the case without a jury, of operating a motor vehicle while under the influence of intoxicants (Code, § 18.1-54, 1960 Repl.Vol.). His punishment was fixed at a fine of $200.00 and confinement in jail for a period of sixty days, the jail sentence being suspended during his good behavior for one year. We granted the defendant a writ of error.

The sole question in the case is whether the trial court erred in admitting into evidence the results of the chemical analysis of the defendant's blood sample.

The evidence shows that on the night of April 13, 1963, Harry J. Hughes, Jr., a deputy sheriff of Pulaski County, observed a vehicle being operated in an erratic manner on Robinson Track Road. He caused the vehicle to be stopped and discovered the defendant to be its operator. The deputy detected that the defendant had the odor of alcohol on his breath, that he was unsteady on his feet and that he was 'thick-tongued.'

The defendant was arrested and upon being advised of his right to a blood test, at first refused but later consented to take such a test. He was taken to Pulaski Hospital where, within two hours of the time of his arrest, a sample of blood was withdrawn from his arm by Mrs. Jean Alderman, a registered nurse.

An analysis of the sample, made by the office of the Chief Medical Examiner in Richmond, disclosed that the defendant's blood contained 0.22 per cent by weight of alcohol.

Mrs. Alderman, in sterilizing the defendant's arm, preparatory to withdrawing his blood, had used ether. It is this use of ether, the defendant contends, which rendered inadmissible the results of his blood test.

The defendant relies on Code, § 18.1-55(c), 1960 Repl.Vol., 1962 Supp., as it read on the date of his arrest, ¹ which required that the prescribed persons withdrawing blood, for chemical analysis in driving under the influence cases, use some type of cleanser or sterilizer, '* * * for the part of the body from which the blood is taken, other than alcohol or other substance which might in any way affect the accuracy of the test.' The defendant argues that ether is a, 'substance which might in any way affect the accuracy of the test' and was, therefore, excluded from use as a sterilizing agent in the chemical analysis now under consideration.

It will be noted that alcohol was the only substance specifically prohibited by Code, § 18.1-55(c) from use as a cleanser or sterilizer. We are of opinion that it was a question of fact whether the use of some other substance, 'might in any way affect the accuracy of the test.' The crucial inquiry in this case, therefore, is whether the evidence supports the trial court's finding that the use of ether on the defendant's arm did not adversely affect the admissibility of the results of the test here involved.

Mrs. Alderman, the registered nurse who withdrew the blood from the defendant's arm, testified as a witness for the Commonwealth. She stated that the use of ether would not, 'in any way affect the blood stream of the person from whom' blood is withdrawn. She admitted, on cross- ...