Stevens v. Com.

• Decision Date: 19 October 2004
• Docket Number: Record No. 1415-03-4.
• Parties: David Alan STEVENS v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

603 S.E.2d 642

44 Va. App. 122

David Alan STEVENS v. COMMONWEALTH of Virginia.

Record No. 1415-03-4.

Court of Appeals of Virginia.

October 19, 2004.

Bonnie H. Hoffman, Deputy Public Defender (Office of the Public Defender, on briefs), for appellant.

Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., BENTON and McCLANAHAN, JJ.

McCLANAHAN, Judge.

David Alan Stevens appeals his conviction for aggravated involuntary manslaughter in violation of Code § 18.2-36.1. He contends that the trial court erred by: (1) failing to foreclose prosecution of the aggravated involuntary manslaughter charge on the ground that the Commonwealth did not comply with the procedural requirements of a driving under the influence (DUI) charge; (2) failing to exclude a hospital toxicology report based on insufficient proof of reliability; (3) failing to instruct the jury on criminal negligence; and (4) finding the evidence sufficient to prove he was guilty of aggravated involuntary manslaughter. For the reasons that follow, we affirm the trial court.

I. Background

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.'" Kelly v. Commonwealth, 41 Va.App. 250, 254, 584 S.E.2d 444, 446 (2003) (en banc) (quoting Watkins v. Commonwealth, 26 Va.App. 335, 348, 494 S.E.2d 859, 866 (1998)).

So viewed, on June 29, 2002, appellant struck an automobile driven by Barry Childers while Childers was turning left at an intersection. As a result, Heather Watson, a passenger in Childers' vehicle, was killed. Volunteer rescue workers treated appellant at the scene, and appellant told one of them that he had been drinking "lots and lots and lots," and had come from a bar. Appellant was transported to a local hospital emergency room. Appellant's hospital admission records show that appellant stated he had consumed "between 12—24 beers" and "[more than] 18 beers" prior to the accident.

After the accident, the Loudoun County Sheriff's Office dispatched Deputy Chris Coderre to the hospital to arrest appellant. Appellant was waiting to undergo a Computed Axial Tomography scan when Coderre located him. Coderre said he could clearly smell alcohol in the room that appellant was in, the smell being especially obvious in the hospital's sterile environment. After the scan, Coderre spoke to appellant and informed him that he was under arrest for DUI.Coderre read the implied consent law to appellant,¹ explained the procedure, and asked him to submit to a blood test, to which appellant agreed. Coderre watched a hospital lab technician draw two vials of appellant's blood and seal, package, tape and initial them. Once the blood was drawn, Coderre informed appellant of his right to an independent analysis of the blood sample, asked him if he wished to have it done, and, if so, to sign the form authorizing the test. Coderre offered appellant the form and his pen, upon which appellant stated, "I'm too f____ed up. I can't sign sh____." Coderre kept the form with a vial of appellant's blood and took it with him when he left the hospital. The form and blood sample remained locked in the trunk of Coderre's police cruiser until the following Monday when Coderre submitted it to the Department of Forensic Sciences for testing. An analysis of this blood sample showed appellant's blood alcohol content was .21. The hospital's blood toxicology report indicated that appellant's blood alcohol content was .24 or .25. On July 1, 2002, the Commonwealth charged appellant with driving under the influence, pursuant to Code § 18.2-266, and aggravated involuntary manslaughter, pursuant to Code § 18.2-36.1.

At a pretrial hearing, the trial court suppressed the implied consent blood sample analysis and precluded the Commonwealth from using the presumption of intoxication pursuant to Code § 18.2-269. The trial court based its ruling on a finding that the Commonwealth had failed to arrest appellant within the statutorily mandated period after the incident as required by Code § 18.2-268.2.² The court also ruled that appellant had not properly been provided the form requesting independent analysis of the blood sample. The court therefore dismissed prosecution of charges under Code § 18.2-266(DUI) but allowed the Commonwealth to proceed with prosecution under Code § 18.2-36.1 (aggravated involuntary manslaughter). After a jury trial, appellant was convicted of aggravated involuntary manslaughter and sentenced to fifteen years in prison.

II. Analysis

A. The Trial Court Did Not Err by Allowing Prosecution under Code § 18.2-36.1

Appellant asserts, relying on Hall v. Commonwealth, 32 Va.App. 616, 627, 529 S.E.2d 829, 835 (2000), that a prosecution for aggravated involuntary manslaughter under Code § 18.2-36.1 is inherently a prosecution for DUI under Code § 18.2-266 and, therefore, the Commonwealth must comply with all of the code provisions related to a prosecution for DUI. In Hall, this Court stated,

The manslaughter statute under which appellant was tried expressly references a violation of Code § 18.2-266 as the predicate for prosecution of aggravated manslaughter. By the express wording of the statute, a prosecution for a violation of Code § 18.2-36.1 is necessarily a "prosecution under [Code] § 18.2-266." Code § 18.2-267(E). The Commonwealth can prove a violation of Code § 18.2-36.1 if and only if it proves a violation of Code § 18.2-266. Thus, we hold that Code § 18.2-267(E) applies to bar introduction of the results of the preliminary analysis because a prosecution under Code § 18.2-36.1 includes as an element of the offense proof of violation of Code § 18.2-266.

Hall, 32 Va.App. at 627, 529 S.E.2d at 835. Based on that holding, appellant contends that the trial court should have dismissed the aggravated manslaughter charge under Code § 18.2-36.1 on the ground that the Commonwealth did not comply with the procedural requirements of Code § 18.2-268.6, a provision concerning the transmission of blood samples.

An involuntary manslaughter conviction under Code § 18.2-36.1 requires a finding that the defendant was driving under the influence of either alcohol or drugs or a combination of alcohol and drugs, as specified in clauses (ii), (iii) and (iv) of Code § 18.2-266.Code of Virginia, Title 18.2, Chapter 7, Article 2 governs the prosecution of driving a motor vehicle while intoxicated, and includes Code § 18.2-266 as well as Code §§ 18.2-268.1 through -268.11, which provide the steps for conducting breath and blood tests as related to the implied consent law.

At the time of appellant's arrest, Code § 18.2-268.2(B) provided that "[a]ny person so arrested for a violation of [Code] § 18.2-266(i) or (ii) or both, or [Code] § 18.2-266.1... 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 § 18.2-268.6 required that when a blood sample was drawn, the arresting officer must give the accused a form setting forth the procedures for obtaining an independent analysis of the blood sample.³ Code § 18.2-268.11 provides that the steps for conducting the breath and blood tests are procedural and require only substantial compliance. Appellant argues that the procedures are mandatory in an arrest under Code § 18.2-36.1, that the accused must receive the independent analysis form, and because he did not receive the form, the charge should have been dismissed. We disagree for the following reasons.

While it is true that Hall stands for the proposition that a prosecution under Code § 18.2-36.1 is necessarily a prosecution under Code § 18.2-266, the application of the rule in Hall, is much narrower than appellant argues. In Hall, the Court held that preliminary analysis of a breath test was inadmissible in an aggravated manslaughter prosecution under Code § 18.2-36.1, because the breath test results in that case were introduced to prove a violation of Code § 18.2-266, which is not permissible under Code § 18.2-267(E). The holding in Hall is limited to Code § 18.2-267, a statute that, among other provisions, prohibits admitting into evidence preliminary test results that are used to determine whether an arrest should be made for a violation of Code § 18.2-266. On the other hand, Code § 18.2-36.1 specifically predicates prosecution under that statute upon a violation of either clause (ii), (iii) or (iv) of Code § 18.2-266. In addition, the implied consent law and related statutes are invoked post-arrest, when a violation of DUI has already been charged, and prescribe procedures for taking and testing blood samples. In fact, as the trial court stated, and as we point out below, if the Commonwealth had decided to charge appellant under "[Code] § 18.2-36.1 alone, he would not be able to insist upon the independent analysis test afforded him under Code § 18.2-268.6."

Results from a blood test are not necessary or required for a prosecution under Code § 18.2-266(ii), (iii), or (iv), and, thus, are not required for prosecution under Code § 18.2-36.1. 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."). Only clause (i) of Code § 18.2-266, "the per se statute predicating guilt on blood alcohol content alone," requires blood test results. Cutright v. Commonwealth, 43 Va.App. 593, 598, 601 S.E.2d 1, 3 (2004) (internal quotation marks and citation omitted). Code § 18.2-36.1 does not require that the Commonwealth establish a violation of cl...