Shumate v. Com.

• Decision Date: 06 March 1967
• Citation: 207 Va. 877,153 S.E.2d 243
• Parties: Lewis Hampton SHUMATE, Jr. v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 243

153 S.E.2d 243

207 Va. 877

Lewis Hampton SHUMATE, Jr. v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

March 6, 1967.

H. E. Widener, Jr., Bristol, T. L. Hutton, Jr., Abingdon, (Joseph P. Johnson, Jr., Abingdon, D. H. Frackelton, Widener, Widener & Frackelton, Bristol, on brief), for plaintiff in error.

A. R. Woodroof, Asst. Atty. Gen., (Robert Y. Button, Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

BUCHANAN, Justice.

Lewis Hampton Shumate, Jr., defendant, was convicted of operating a motor vehicle while under the influence of alcohol in violation of Code § 18.1--54, 1960 Repl. Vol. He waived a jury, was tried by the court, found guilty and was sentenced to pay a fine of $200 and his privilege to operate a motor vehicle in Virginia was suspended for a period of twelve months, Code § 18.1--59, 1966 Cum.Supp. From this judgment he was granted a writ of error.

On April 18, 1965, at approximately 2:45 a.m., a motor vehicle driven by defendant was observed proceeding west on Interstate Route 81 in Washington county by Troopers V. A. Richardson and Lloyd Lester. Trooper Richardson testified that he saw defendant's vehicle, traveling about fifty miles an hour, twice weave to the left across the center line before the troopers stopped it.

The trooper testified that defendant was unsteady on his feet as he got out of his automobile, that he was rocking and his walking was unsteady, that his face was flushed, his eyes red-rimmed, and he had a heavy odor of intoxicants about him. He took about five minutes, the trooper said, to locate and produce his operator's license and his vehicle registration card, first giving the trooper a voter registration card.

When the trooper advised the defendant that he would be charged with driving under the influence of alcohol, defendant kept stating, 'My family will be heartbroken' and 'Why are you punishing me?'

Shumate, a furniture manufacturer in Johnson City, Tennessee, and owner of a farm in Washington county, testified that when arrested he was driving from his farm to his home because of sickness in his family. He attributed the weaving of his automobile to carelessness, his physical unsteadiness to the nervous reaction caused by being stopped by the troopers, and his flushed appearance to having been in the sun the previous day. He said that he had had nothing to drink since before supper, which was between six and seven o'clock.

Upon being informed that when he operated a motor vehicle on the highways of Virginia, he was deemed to have consented to submit to a blood alcohol test if charged with driving under the influence of alcohol, he gave his actual consent to take a test and was taken first to the county jail and then to an Abingdon hospital.

The only evidence relating to the actual taking of the blood sample was supplied by Trooper Richardson, who said that the containers for the blood were opened in the presence of the defendant, that the removal of the cellophane wrappers from the containers was called to defendant's attention, and that after the blood sample was taken it was placed in the containers and these were sealed, which was also called to defendant's attention.

The trooper kept one sample (in vial designated brown), which he sent to the office of the State chief medical examiner for testing. He testified that he told defendant that he could fill out a form directing that the other vial (designated blue) be sent to an approved, independent laboratory for testing, and a list was given him to show where it could be sent; but defendant did not wish to fill out the form at that time and he (the trooper) turned the blue sample over to a deputy sheriff at the Washington county jail, the county sheriff not being present or available at the time.

The deputy sheriff, John A. McCall, defendant's witness, testified that Trooper Richardson brought this blue sample to the jail, and not finding the sheriff asked McCall to accept it at the sheriff's office, which McCall did, and he dated the box containing the sample and put defendant's name on it. He produced and filed as an exhibit the form for obtaining an independent analysis prescribed by § 18.1--55.1 (d1) of the Code. He testified that the blue sample was not then forwarded for analysis because the form directing it to be done was not properly signed. In the blank space on the form for writing the name of the person whose blood was taken there was illegible writing, so determined by the court, and the place for the defendant's signature was blank.

This form and the blue sample remained in the sheriff's office until defendant's case was called in the county court on May 7, 1965, at which time his name was signed thereto by his counsel and the blue sample was then sent to Lewis Gale Hospital, in Roanoke, for anaylsis as directed.

McCall testified that the defendant at no time requested him to mail this sample prior to May 7.

Defendant testified that he put his signature beside a check mark on the form where 'they' marked for him to sign, and that the writing in the blank space was his signature. Asked whether anybody told him to put his signature there, he answered, 'I think so.'

The report of the analysis made by the chief medical examiner showed that defendant's blood had an alcohol content of .22% By weight and the report from the Lewis Gale Hospital showed an alcohol content of .21% By weight. An alcoholic content of .15% Or more creates a presumption that defendant was under the influence of alcoholic intoxicants. Code § 18.1--57, 1966 Cum.Supp.

Defendant contends, first, that neither report of the blood analysis was admissible in evidence because the taking of the blood violated his right against self-incrimination guaranteed by Article 1, § 8 of the Virginia Constitution, and the Fifth and Fourteenth Amendments to the United States Constitution.

It is now settled by the decisions of this court and of the United States Supreme Court that these constitutional guaranties are not violated by such taking of blood.

In Walton v. City of Roanoke, 204 Va. 678, 681, 133 S.E.2d 315, 317, we said:

'The constitutional prohibition against compelling one in a criminal court to give evidence against himself is restricted to oral testimony and does not preclude the use of one's body of secretions therefrom and the results of their chemical analyses. * * *' See also Caldwell v. Commonwealth, 205 Va. 277, 136 S.E.2d 798.

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, decided June 20, 1966, defendant was charged with driving under the influence of intoxicants and a sample of his blood was taken against his will and at the direction of a police officer. He claimed this violated his privilege against self-incrimination under the Fifth Amendment, but the court rejected his claim and held 'that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends.'

Defendant next contends that his statements, 'My family will be heartbroken' and 'Why are you punishing me?', made to the arresting officer after defendant was advised that he would be charged with driving under the influence of alcohol, were not admissible in evidence because he had not been advised of his right to counsel.

He relies on Cooper v. Commonwealth, 205 Va. 883, 140 S.E.2d 688, where Cooper's conviction for the rape of a four-year-old girl was reversed because of the admission into evidence of a statement made by Cooper while represented by counsel but in counsel's absence, after indictment, during an interrogation by a State police investigator. The investigator testified that he played to Cooper a tape recording of the infant prosecutrix telling her mother what Cooper had done to her. He asked Cooper why the child would make up such a story; that there was bound to be some reason for it, and Cooper 'half started crying and he said I do not know why.'

That case does not aid the defendant. Cooper was charged with a capital felony, was intellectually of the lower limits of normal, and was being subjected to accusatory post-indictment interrogation without the presence of counsel. Shumate, a manufacturer and farm owner, charged with a misdemeanor, Code § 18.1--58, made his statements spontaneously and not in answer to interrogation by the trooper. Their admission violated noen of his constitutional rights. See Mathews v. Commonwealth, 207 Va. 915, 153 S.E.2d 238.

Defendant also contends that the court erred in admitting in evidence the results of the blood tests and in not acquitting him because the provisions of § 18.1--55.1 were not complied with. He says it was not shown who took the blood; whether soap and water were used to cleanse the place at which the blood was taken; and that paragraphs (d1) and (d4) of said section, with respect to forwarding his blood sample for analysis or destroying the sample after seventy-two hours, were not followed.

In overruling defendant's objection the court stated that he would hear any evidence of noncompliance defe...