Oliver v. Com.

• Decision Date: 04 March 2003
• Docket Number: Record No. 2536-01-2.
• Citation: 40 Va. App. 20,577 S.E.2d 514
• Court: Virginia Court of Appeals
• Parties: Herbert Eugene OLIVER v. COMMONWEALTH of Virginia.

577 S.E.2d 514

40 Va. App. 20

Herbert Eugene OLIVER v. COMMONWEALTH of Virginia.

Record No. 2536-01-2.

Court of Appeals of Virginia, Alexandria.

March 4, 2003.

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

Kathleen B. Martin, Assistant Attorney General (Jerry W. Kilgore, Attorney General; H. Elizabeth Shaffer, Assistant Attorney General, on brief), for appellee.

Present: Chief Judge FITZPATRICK, Judges BUMGARDNER and HUMPHREYS.

BUMGARDNER, Judge.

Herbert Eugene Oliver appeals his conviction after a bench trial for driving under the influence of alcohol, in violation of Code § 18.2-266. We affirm the judgment of the trial court.

Officer Brian Layton responded to a hit-and-run complaint and found the defendant in the driver's seat. He was "passed out," and the engine was still running. The officer observed two empty Jack Daniels bottles, and the defendant admitted to drinking that brand before falling asleep again.

The officer took the defendant to a police car and began to advise him of the implied consent law, but the defendant fell asleep about half-way through the advice. The officer completed the advisement and then arrested the defendant for driving under the influence. The officer drove directly to the magistrate's office, but the defendant would not awake after they arrived and never regained consciousness. The officer left him in the police car, obtained an arrest warrant, and took the defendant to jail. The magistrate never advised the defendant of the implied consent law, and no blood or breath sample was obtained. The breathalyzer test was available.

The defendant argues the officer was required to make him take a blood test since he was unconscious and incapable of taking a breath test.¹ The defendant cites Breeden v. Commonwealth, 15 Va.App. 148, 421 S.E.2d 674 (1992), as authority that he cannot be prosecuted because the officer was required to take him to a hospital and compel a blood test.

Breeden held, "[o]nce the Commonwealth has elected to have a driver take a blood or breath test pursuant to Code § 18.2-268, the driver has a right to receive the benefits of the test." Id. at 150, 421 S.E.2d at 675. At that time, the statute permitted the defendant to elect either a breath or blood test. As noted: "[w]hen the legislature enacted Code § 18.2-268(c), it granted to the accused... the option to take a blood or breath test. That election ... is one the Court must honor." Id. at 150, 421 S.E.2d at 676. The General Assembly amended the statute in 1995 and it no longer permits an election. The arresting officer provides a blood test only when a defendant is physically unable to perform a breath test. Breeden is inapplicable because the essential feature of the statute it interpreted has changed.

At the time of the defendant's arrest, the implied consent statute provided:

A. Any person ... who operates a motor vehicle ... shall be deemed ... to have consented to have samples of his blood, breath, or both ... taken . . . to determine the alcohol ... content of his blood . . . .

B. Any person so arrested for a violation of § 18.2-266(i) ... shall submit to a breath test. If the breath test is unavailable or the person is physically unable to submit to the breath test, a blood test shall be given....

Code § 18.2-268.2.

The refusal statute provided:

If a person, after having been arrested ... and after having been advised by the arresting officer that (i) a person ... is deemed ... to have consented to have samples of his blood and breath taken ... and (iii) that the unreasonable refusal to do so constitutes grounds for the revocation of the privilege of operating a motor vehicle[,]... refuses ... such tests, the arresting officer shall take the person before a committing magistrate. If he again so refuses after having been further advised by the magistrate ... then no blood or breath samples shall be taken....

Code § 18.2-268.3(A).

Goodman v. Commonwealth, 37 Va.App. 374, 558 S.E.2d 555 (2002), affirmed a conviction based on a blood sample obtained from an unconscious driver, who was receiving emergency treatment in a hospital. "[T]he implied consent law operates to permit the taking and testing of blood from that driver and that incoherence or unconsciousness does not constitute a refusal, reasonable or unreasonable, because consent is continuing." Id. at 383, 558 S.E.2d at 560. While the holding permits the taking, nothing suggests it mandates the taking.

Under the particular facts of this case, a blood test was not required. The record demonstrates that the defendant's condition was of his own making. He does not contest the finding that he was intoxicated when arrested, and he has demonstrated no prejudice that he suffered because of the failure to take a blood test. The implied consent statute contains no language prohibiting prosecution.

Test results from a breath or blood test are not necessary or required to prove driving under the influence of alcohol or drugs. Code § 18.2-268.10 states, "the admission of the blood or breath test results shall not limit the introduction of any other relevant evidence ... and the court shall, regardless of the result of any blood or breath tests, consider other relevant admissible evidence of the condition of the accused." "The result of a breath analysis is but auxiliary proof which may tend to corroborate evidence of the objective symptoms...." Brooks v. City of Newport News, 224 Va. 311, 315-16, 295 S.E.2d 801, 804 (1982).

We hold the implied consent statute does not require that an arresting officer compel submission to chemical testing as a prerequisite to prosecution. Under the facts of this case, failure to obtain a blood test from the unconscious defendant does not mandate dismissal of the charge. Accordingly, we affirm the conviction for driving under the influence.

Affirmed.

HUMPHREYS, Judge, concurring.

I concur in the result reached by the majority. However, I write separately because, in my judgment, the majority fails to adequately address the issue raised by Oliver, which is whether Virginia's implied consent statute imposes a mandatory duty upon law enforcement officers to attempt to secure chemical testing of DUI suspects. More specifically, whether Code § 18.2-268.2 requires officers to provide a suspect with a blood test, if the suspect is physically unable to perform a breath test, and/or a breath test is otherwise unavailable.

On appeal, Oliver argues that because, in Officer Layton's perception, Oliver was "`incapable of taking ... a breath test,'" Layton's "failure to at least attempt to compel [Oliver] to submit to the alternative of a blood test ... require[s] dismissal of the charge against [Oliver]." In essence, Oliver contends that Virginia's implied consent statute imposes a mandatory duty on law enforcement personnel to offer a breath test or in the alternative, a blood test, to all persons accused of driving while under the influence. Oliver further argues that if this duty is not met, prosecution for the charge cannot be had. I disagree.

Assuming, without deciding, that Oliver's self-imposed unconsciousness constitutes "physical inability" under the implied consent statute, I would hold that the statutory scheme relative to implied consent and prosecutions for driving while intoxicated, does not require an officer to attempt to obtain chemical testing of a person suspected of driving under the influence of alcohol or drugs.

This specific question has not been considered by an appellate court in this State, and the majority avoids doing so here. Nevertheless, it is fundamental that "[w]hen the plain language in a statute is clear and unambiguous, we are bound by the plain meaning of that language." Cummings v. Fulghum, 261 Va. 73, 77, 540 S.E.2d 494, 496 (2001). At the time of Oliver's arrest, Code § 18.2-268.2, Virginia's implied consent statute, provided 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 or § 18.2-266.1 or of a similar ordinance within two hours of the alleged offense.

B. Any person so arrested for a violation of § 18.2-266(i) or (ii) or both, or § 18.2-266.1 or of a similar ordinance shall submit to a breath test. If the breath test is unavailable or the person is physically unable to submit to the breath test, a blood test shall be given. The accused shall, prior to administration of the test, be advised by the person administering the test that he has the right to observe the process of analysis and to see the blood-alcohol reading on the equipment used to perform the breath test. If the equipment automatically produces a written printout of the breath test result, the printout, or a copy, shall be given to the accused.

C. A person, after having been arrested for a violation of § 18.2-266(iii) or (iv) or § 18.2-266.1 or of a similar ordinance, may be required to submit to a blood test to determine the drug or both drug and alcohol content of his blood. When a person, after having been arrested for a violation of § 18.2-266(i) or (ii) or both, submits to a breath test in accordance with subsection B of this section or refuses to take or is incapable of taking such a breath test, he may be required to submit to tests to determine the drug or both drug and alcohol content of his blood if the law-enforcement officer has reasonable cause to believe the person was driving under the influence of any drug or combination of drugs, or the combined influence of alcohol and drugs.

Code § 18.2-268.3(A) provided:

If a person, after having been

...