Stevens v. Com.

• Decision Date: 09 August 2005
• Docket Number: Record No. 1415-03-4.
• Citation: 616 S.E.2d 754,46 Va. App. 234
• Court: Virginia Supreme Court
• Parties: David Alan STEVENS v. COMMONWEALTH of Virginia.

616 S.E.2d 754

46 Va. App. 234

David Alan STEVENS v. COMMONWEALTH of Virginia.

Record No. 1415-03-4.

Court of Appeals of Virginia, Richmond.

August 9, 2005.

COPYRIGHT MATERIAL OMITTED

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, ELDER, FRANK, HUMPHREYS, CLEMENTS, FELTON, KELSEY and McCLANAHAN, JJ.

UPON REHEARING EN BANC

McCLANAHAN, J.

By published opinion dated October 19, 2004, a divided panel of this Court affirmed the judgment of the trial court. Stevens v. Commonwealth, 44 Va.App. 122, 603 S.E.2d 642 (2004). We stayed the mandate of that decision and granted a rehearing en banc, 44 Va.App. 414, 605 S.E.2d 329 (2004). Upon rehearing en banc, it is ordered that the stay of the mandate is lifted, and the judgment of the trial court is affirmed.

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) (citations omitted).

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 come from a bar and had been drinking "lots and lots and lots." 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, then 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 law 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. Implied Consent Law Procedural Violations Do Not Require Dismissal of an Aggravated Involuntary Manslaughter Charge

An aggravated 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) or (iv) of Code § 18.2-266. The implied consent law governs procedural steps for conducting breath and blood tests for the prosecution of DUI charges.

Appellant argues that a prosecution for aggravated involuntary manslaughter is inherently a prosecution for DUI; thus, the implied consent law procedures apply.³ At the time of appellant's arrest, these procedures required the arresting officer to give the accused a form indicating how he could obtain an independent analysis of the blood sample drawn.⁴ Appellant argues that because he did not receive the independent analysis form, the trial court should have dismissed the aggravated manslaughter charge.⁵

We disagree. Even if failure to comply with the implied consent law procedural requirements does not forbid a prosecution for aggravated manslaughter, blood test results are not required for a conviction under either Code §§ 18.2-266 or 18.2-36.1.⁶

Neither Code § 18.2-268.6 nor any of the other implied consent law statutes refer to Code § 18.2-36.1. Code §§ 18.2-268.2, -268.3, -268.4, -268.5, -268.8, -268.9 and -268.10 include specific language that they apply to violations of Code §§ 18.2-266 or -266.1 or a similar ordinance,⁷ but none of those code sections mention Code § 18.2-36.1.⁸ Only Code § 18.2-268.3 applies its provisions to an additional statute, specifically, Code § 18.2-51.4, maiming as a result of driving while intoxicated. Additionally, Code § 18.2-51.4 specifically provides that the implied consent law provisions apply upon arrest for a violation of that code section.⁹ Had the General Assembly intended to require the implied consent law procedures and its related statutory provisions for a prosecution under Code § 18.2-36.1, it would have specifically provided so; however, it did not. See Jordan v. South Boston, 138 Va. 838, 844-45, 122 S.E. 265, 267 (1924) ("Courts cannot read into a statute something that is not within the manifest intention of the legislature as gathered from the statute itself. To depart from the meaning expressed by the words is to alter the statute, to legislate and not to interpret." (internal quotations and citation omitted)). The omission, in this context, makes it apparent that the legislature did not require those procedural hurdles.

Furthermore, blood test results are not required to prove intoxication for prosecution under clauses (ii), (iii) or (iv) of Code § 18.2-266, and, by extension, therefore, 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. Code § 18 .2-36.1 does not require that the Commonwealth establish a violation of clause (i) of Code § 18.2-266; it only requires a violation of clauses (ii), (iii) or (iv). If the General Assembly intended to require a blood test for prosecution for involuntary manslaughter, it would have tied the involuntary manslaughter statute to clause (i) and not just clauses (ii), (iii), and (iv). Thus, "`the result of a [blood] analysis is but auxiliary proof which may tend to corroborate evidence of the objective symptoms [of being under the influence of alcohol].'" Thurston v. Lynchburg, 15 Va.App. 475, 483, 424 S.E.2d 701, 705-06 (1992) (quoting Brooks v. City of Newport News, 224 Va. 311, 315-16, 295 S.E.2d 801, 804 (1982)). In this case, there was sufficient evidence of objective symptoms that would allow a fact finder to conclude that appellant was under the influence of alcohol: (1) appellant admitted to consuming twelve to twenty-four beers; (2) Coderre and two other witnesses smelled a "strong odor" of alcohol when in the appellant's presence; (3) when asked if he had been drinking, appellant answered yes, "lots and lots and lots"; and, (4) at the hospital, appellant stated that he was "too f___ed up" and couldn't sign anything. Such evidence is enough to support a finding of intoxication, and, therefore, a violation of Code § 18.2-266(ii), (iii) or (iv), without the blood test.

B. The Court Did Not Err in Admitting the Hospital...