Thomas v. Town of Marion, 822115

• Decision Date: 14 October 1983
• Docket Number: No. 822115,822115
• Citation: 226 Va. 251,308 S.E.2d 120
• Parties: Earl Jackson THOMAS v. TOWN OF MARION. Record
• Court: Virginia Supreme Court

Page 120

308 S.E.2d 120

226 Va. 251

Earl Jackson THOMAS v. TOWN OF MARION.

Record No. 822115.

Supreme Court of Virginia.

Oct. 14, 1983.

Robert I. Asbury, Marion, for appellant.

No brief or argument for appellee.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON, RUSSELL and THOMAS, JJ.

COMPTON, Justice.

Following a motor vehicle accident, Earl Jackson Thomas was charged with driving under the influence of alcohol and with driving a motor vehicle after his operator's license had been revoked. In a jury trial, defendant was convicted of both offenses. He was sentenced on each charge to six months in jail and fined $200. On appeal, he contends the evidence was insufficient to convict him of either offense and that the trial court erroneously admitted the results of the analysis of his breath as evidence in the drunk driving case.

The only testimony came from the investigating police officer, Sergeant Charles Overbay of the Town of Marion Police Department. He testified he received a call on May 8, 1981 that an accident had occurred within the corporate limits of the town. In response to the question, "[a]nd what time of day or night was it," Overbay testified, "[t]his was approximately three p.m." Upon arrival at the scene within 20 minutes of the call, Overbay found two damaged motor vehicles and determined that the defendant, who was not at the scene, had been the driver of one of them.

Overbay proceeded to a local hospital and interviewed defendant, who was being treated for a head injury. The interrogation took place about 4:35 p.m. Thomas was lying on a bed, and Overbay said the suspect had a strong odor of alcohol about his person, his speech was slurred, and his face was flushed. Defendant admitted consuming two beers and a shot of whiskey between 10:30 a.m. and noon on that day.

The officer said he placed defendant under arrest without a warrant at the hospital. Overbay then advised defendant of the requirements of the "implied consent" law.

Thomas was released from the hospital about 5:50 p.m. The officer walked from the hospital with the accused and noticed defendant was unsteady on his feet. An arrest warrant was issued and served on the accused at 6:15 p.m. He subsequently submitted to an analysis of his breath. Over defendant's objection, a certificate of breath alcohol analysis was received in evidence showing defendant's blood alcohol content to be .17 percent by weight by volume.

Virginia's "implied consent" law provides, as pertinent here, that any person who operates a motor vehicle upon a public highway in the Commonwealth shall be deemed, as a condition of such operation, to have consented to have a sample of his breath taken for a chemical test to determine the alcoholic content of his blood, if such person is arrested for violation of the drunk driving statute "within two hours of the alleged offense." Code § 18.2-268(b). The statute further provides that any person so arrested must choose to submit to either a breath or blood test. Id.

On appeal, defendant asserts the evidence fails to show when the accident occurred, and thus, there is no proof that he was arrested for driving under the influence within two hours of the offense. He also contends that even if the evidence is sufficient to show the accident occurred at 3:00 p.m., the warrantless arrest at 4:35 p.m. was invalid, thus making the valid arrest at 6:15 p.m. untimely under the "implied...