Cutright v. Com.

• Decision Date: 17 August 2004
• Docket Number: Record No. 1559-03-2.
• Citation: 43 Va. App. 593,601 S.E.2d 1
• Court: Virginia Court of Appeals
• Parties: Richard A. CUTRIGHT v. COMMONWEALTH of Virginia.

601 S.E.2d 1

43 Va. App. 593

Richard A. CUTRIGHT v. COMMONWEALTH of Virginia.

Record No. 1559-03-2.

Court of Appeals of Virginia, Richmond.

August 17, 2004.

Benjamin H. Woodbridge, Jr. (Woodbridge, Ventura & Kelly, on brief), for appellant.

Steven A. Witmer, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: FRANK and KELSEY, JJ. and WILLIS, Sr. J.

KELSEY, Judge.

The trial court convicted Richard A. Cutright of driving while intoxicated in violation of Code § 18.2-266. Because the Commonwealth gave him only one laboratory to choose from to perform an independent blood analysis, Cutright argues that the court should have dismissed his DUI charge or, short of that, at least suppressed the results of the blood tests. Finding neither remedy applies in this case, we affirm.

I.

On appeal, we review the evidence in the "light most favorable" to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). "That principle requires us to `discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom.'" Seaton v. Commonwealth, 42 Va.App. 739, 743, 595 S.E.2d 9, 11 (2004) (citation omitted).

On February 16, 2002, at 2:55 a.m., Richard Cutright drove into a commuter parking lot. Noticing Deputy G.M. Harvey sitting in his police cruiser, Cutright approached and asked him if he had seen some people Cutright was looking for. Deputy Harvey detected a strong odor of alcohol coming from Cutright and "asked him how much he had had to drink that evening." Cutright admitted drinking about "eight beers" earlier in the evening. Having observed Cutright driving into the lot, Deputy Harvey conducted four field sobriety tests on Cutright, three of which he failed, as well as a preliminary breath test, which produced a high result. Deputy Harvey then arrested Cutright for driving under the influence.

Deputy Harvey informed Cutright of Virginia's implied consent law and transported him to Mary Washington Hospital for a blood test. Medical personnel drew two vials of blood. Harvey retained one vial for analysis by the Division of Forensic Science. He provided Cutright with a form so Cutright could choose an additional laboratory for an independent analysis of the second vial. The form listed only one approved laboratory, Medical College of Virginia Toxicology Laboratory.¹ Cutright requested that the second vial of blood be sent to MCV. Both the Division of Forensic Science and MCV found Cutright's blood alcohol content to be .12%.

The Commonwealth charged Cutright by misdemeanor warrant asserting a violation of Code § 18.2-266.² After being convicted in the general district court, Cutright appealed to the circuit court for a trial de novo.

At the time of Cutright's arrest, Code § 18.2-268.6 provided that the arresting officer "shall give to the accused a form provided by the Division which sets forth the procedure to obtain an independent analysis of the blood in the second container, and a list of the names and addresses of laboratories approved by the Division." The statute continued: "If the accused directs the officer in writing on the form to forward the second container to an approved laboratory of the accused's choice, the officer shall do so." Id.³

In the circuit court, Cutright did not challenge the prosecution's evidence of his inability to pass simple field sobriety tests, his admitted consumption of eight beers, the strong smell of alcohol coming from him, or, for that matter, the Commonwealth's assertion that he had driven under the influence of alcohol. Instead, Cutright argued only that Code § 18.2-268.6 guaranteed him the right to choose between at least two independent laboratories. Because only one laboratory had contracted with the Commonwealth to provide independent testing services, Cutright argued, the trial court erred in not dismissing the DUI charge or, at a minimum, in not suppressing the BAC test results. The trial court rejected these arguments, as do we.

II.

A. DISMISSAL REMEDY

The Commonwealth charged Cutright with violating all four subsections of Code § 18.2-266. Even if it had not done so, the Commonwealth could rely on any subsection of Code § 18.2-266 in support of a charge asserting a violation of the statute generally. See Code § 18.2-266 ("A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii) or (iv)." (emphasis added)).

The incriminating evidence against Cutright included not only the two BAC test results, but also Deputy Harvey's extensive observations of Cutright's intoxication moments after he stepped out of his car.⁴ This evidentiary showing — even without the BAC test results — would support a DUI conviction under Code § 18.2-266(ii). See Oliver v. Commonwealth, 40 Va.App. 20, 24, 577 S.E.2d 514, 516 (2003)

("Test results from a breath or blood test are not necessary or required to prove driving under the influence of alcohol or drugs.").⁵ The absence of the BAC test results would require dismissal only if the Commonwealth had prosecuted Cutright solely for violating subsection (i) of Code § 18.2-266, the" `per se' statute" predicating guilt on blood alcohol content alone. Kehl v. Commonwealth, 15 Va.App. 602, 605, 426 S.E.2d 127, 129 (1993).

Dismissal of a subsection (ii) DUI charge may be appropriate in cases involving an outright failure of the Commonwealth to provide any independent testing of any kind despite a statutory requirement that it do so. See, e.g., Shoemaker v. Commonwealth, 18 Va.App. 61, 64, 441 S.E.2d 354, 356 (1994)

(holding dismissal appropriate where Commonwealth failed to take further action when sample was returned unopened and marked "refused" by lab selected by defendant); Kemp v. Commonwealth, 16 Va.App. 360, 365-66, 429 S.E.2d 875, 878-79 (1993) (dismissing charge where independent BAC test results were never submitted to the court or made available to defendant).⁶

The dismissal remedy, however, cannot be sensibly applied to this case. Cutright requested and received independent BAC testing at MCV. He concedes on appeal, as he did in the trial court, that no evidence suggested that these results were invalid or that additional testing elsewhere might have produced different findings. In other words, even Cutright does not speculate that a second independent lab would have come up with exculpatory evidence previously undiscovered by either the MCV lab or the Division of Forensic Science. Under these circumstances, no statutory policy would be served by vacating a DUI conviction of a drunk driver who otherwise concedes his guilt. The trial court, therefore, did not err in refusing to dismiss the DUI charge against Cutright.⁷

B. SUPPRESSION OF BAC TEST RESULTS

Even if he has no right to a dismissal, Cutright argues, the trial court still erred by not suppressing the evidence of his BAC test results. To answer this contention, we need not determine whether the now-superseded language in Code § 18.2-268.6 contemplated two or more laboratories as Cutright argues (a conclusion he finds implicit in § 18.2-268.6's use of the plural in the phrase "list of the names and addresses of laboratories"), or whether the list could include just one lab as the Commonwealth asserts (a conclusion it finds implicit in § 18.2-268.6's silent incorporation of Code § 1-13's tolerance for using plural and singular language interchangeably). We hold that, in either event, the trial court had no obligation to suppress the BAC test results.

Absent an infirmity of constitutional dimensions, the "mere violation of state statutory law does not require that the offending evidence be suppressed, unless the statute expressly provides for an evidentiary exclusion remedy." Seaton, 42 Va.App. at 757 n. 7, 595 S.E.2d at 17 n. 7; see also Vinson v. Commonwealth, 258 Va. 459, 469, 522 S.E.2d 170, 177 (1999); Janis v. Commonwealth, 22 Va.App. 646, 651, 472 S.E.2d 649, 652, aff'd on reh'g en banc, 23 Va.App. 696, 479 S.E.2d 534 (1996); Penn v. Commonwealth, 13 Va.App. 399, 406-07, 412 S.E.2d 189, 193 (1991), aff'd per curiam, 244 Va. 218, 420 S.E.2d 713 (1992); Thompson v. Commonwealth, 10 Va.App. 117, 122, 390 S.E.2d 198, 201 (1990).

The DUI statutes nowhere provide for a suppression remedy for procedural violations. Instead, Code § 18.2-268.11 states that a violation of the procedural steps of Code §§ 18.2-268.2 through 18.2-268.9 "shall go to the weight of the evidence and shall be considered with all the evidence in the case." See Shumate v. Commonwealth, 207 Va. 877, 883, 153 S.E.2d 243, 247 (1967) (holding that procedural violations merely affect "the weight of the evidence"); Snider v. Commonwealth, 26 Va.App. 729, 734, 496 S.E.2d 665, 667 (1998). The same provision also makes clear that the defendant may "introduce evidence on his own behalf to show noncompliance with the aforesaid procedures or any part thereof, and that as a result his rights were prejudiced." Code § 18.2-268.11; see also Snider, 26 Va.App. at 734, 496 S.E.2d at 667. By statute, therefore, the legislative remedy for a procedural violation is not suppression of the evidence, but a full and fair opportunity for both sides to attempt to prove or disprove any prejudicial effect of the violation.⁸ Mere procedural violations must be distinguished from cases where the essential precondition of the implied consent statute — a lawful and timely arrest — has not been met. See Smith v. Commonwealth, 32 Va.App. 228, 233, 527 S.E.2d 456, 459 (2000)

(noting that "for an arrestee to be deemed to have given implied consent under Code § 18.2-268.2, the arrest must have been lawful"); see also Overbee v. Commonwealth, 227 Va. 238, 243, 315 S.E.2d 242, 244 (1984) (untimely arrest); Thomas v. Marion, 226 Va. 251, 254, 308 S.E.2d 120, 122 (1983) (unlawful arrest);...