Thurston v. City of Lynchburg

• Decision Date: 15 December 1992
• Docket Number: No. 0634-91-3,0634-91-3
• Citation: 15 Va.App. 475,424 S.E.2d 701
• Parties: Malcolm Glenn THURSTON v. CITY OF LYNCHBURG. Record
• Court: Virginia Court of Appeals

Page 701

424 S.E.2d 701

15 Va.App. 475

Malcolm Glenn THURSTON v. CITY OF LYNCHBURG.

Record No. 0634-91-3.

Court of Appeals of Virginia.

Dec. 15, 1992.

John R. Alford, Lynchburg (Mark J. Peake, Caskie & Frost, on briefs), for appellant.

B. Leigh Drewry, Jr., Asst. Com's Atty. for the City of Lynchburg, for appellee.

Present: Chief Judge KOONTZ, C.J., and COLEMAN, J., and TRABUE, Judge Designate ^*.

KOONTZ, Chief Judge.

In a bench trial in the Circuit Court of the City of Lynchburg, Malcolm Glenn Thurston, appellant, was convicted of driving under the influence of alcohol in violation of Lynchburg City ordinance 25-162. ¹ On appeal, Thurston contends (1) the trial court erred in admitting into evidence the results of the test administered to determine the alcohol content of his blood; (2) in the absence of the disputed blood test results, the evidence was insufficient to convict him of driving under the influence of alcohol; and (3) the trial court erred in denying his motion for a mistrial based on improper statements made by the Commonwealth's Attorney during the trial. For the reasons that follow, we affirm Thurston's conviction.

I. Factual Background

In the early morning hours of October 24, 1990, Officer Jack Lewis of the Lynchburg Police Department observed Thurston driving his car on a public street in the City of Lynchburg. Officer Lewis further observed the car traveling ten to fifteen miles per hour in excess of the posted forty-five mile per hour speed limit and, at times, drifting over the white line on the side of the road and then back across the center dividing lines. Officer Lewis stopped the car and, upon approaching Thurston, noticed a "moderate odor of alcohol" about Thurston. When asked where he was going, Thurston replied, "I don't really know." Officer Lewis conducted various field sobriety tests, and Thurston performed them with varying degrees of success. Following the administration of a field "alcosensor" test, Officer Lewis arrested Thurston and informed him of Virginia's implied consent law embodied in Code § 18.2-268.2. Thurston elected to have a sample of his blood taken for analysis.

Thereafter, Officer Lewis transported Thurston to Lynchburg General Hospital for the purpose of obtaining the blood sample. At the hospital, Linda Taylor, a registered professional nurse, explained the procedure involved, obtained Thurston's consent, made the required preparations, and began to draw a sample of Thurston's blood. As the blood was being drawn, Thurston reached down and pulled the needle out of his vein. At that point, nurse Taylor had obtained "less than ten" cubic centimeters of blood. She explained to Thurston that she "did not get enough blood for two samples" and offered "to stick him [again] to get another sample." Thurston replied, "you only get one chance, baby." No further sample was taken.

Nurse Taylor then advised Officer Lewis that "normal procedure" or "hospital policy" was to obtain a sample of twenty cubic centimeters of blood so that ten cubic centimeters could be placed into each of two vials for analysis. In response, Officer Lewis instructed nurse Taylor to place the entire sample obtained into one vial. Officer Lewis sent that vial to the Division of Forensic Science Central Laboratory, a state laboratory, for analysis. The resulting certificate of analysis from the state laboratory showed a test result of .22 percent blood alcohol content by weight by volume. Over Thurston's objection, this certificate was admitted into evidence at Thurston's trial.

At the conclusion of the City's case, Thurston called several witnesses and testified in his own defense. Thurston admitted that beginning at 8:30 p.m. on the evening immediately preceding his arrest by Officer Lewis he had consumed two beers, three other alcoholic drinks, and one after-dinner liqueur in two local bars. He maintained, however, that he was not under the influence of alcohol and that, with the exception of the test involving the recitation of the alphabet, he had successfully performed the field sobriety tests.

Thurston further testified that he agreed to take the blood alcohol test. He maintained, however, that in administering the test nurse Taylor "seemed to probe a little bit to find the vein, and when she stuck the needle in, it was a sharp pain, and I left it as long as I could and I pulled my arm back." Thurston maintained that his action was not voluntary but, rather, "a reaction from pain." He produced evidence of extensive bruising to his arm in support of his assertion of this pain.

Finally, Thurston testified that when he became aware that he could obtain an independent analysis of his blood sample, he made an unsuccessful request within seventy-two hours as required by law that a portion of the sample be sent to a laboratory selected by him.

At the conclusion of all of the testimony, the trial court stated:

I find factually that it was [Thurston's] own voluntary act that disrupted the blood testing procedure and in addition to that, the evidence aside from the blood test is sufficient in my view to find him guilty. But I am going to let the tests [sic] in under the circumstances and in this case find him guilty as charged.

II. Discussion

Code §§ 18.2-268.2 through 18.2-268.8 provide the procedural requirements for taking, handling, identifying and disposing of blood samples under Virginia's implied consent law. To implicate the statutes the driver must have operated a motor vehicle upon a public highway in this Commonwealth and have been arrested for a violation of Code § 18.2-266 (or a similar ordinance) within two hours of the alleged offense of driving under the influence of alcohol. Pertinent to the present appeal, Code § 18.2-268.6 provides that "[a]dequate portions of the blood samples" shall be withdrawn in accordance with Code § 18.2-268.5 and be placed into two vials and sealed, and in turn, each vial shall be placed into separate sealed containers. Thereafter, one container shall be sent by the arresting officer to the Division of Forensic Science for testing, and the other upon the request of the accused shall be sent by that officer to a laboratory of the accused's choice for independent testing. When taken in accordance of the required procedures, analyzed and identified, Code § 18.2-268.7 provides for the admissibility of the results of these blood tests at the trial for a Code § 18.2-266 offense.

This statutory scheme provides obvious protections for the accused. In Walton v. City of Roanoke, 204 Va. 678, 133 S.E.2d 315 (1963), our Supreme Court explained the "salutary purpose" of this statutory scheme. There the Court explained:

A chemical analysis of one's blood provides a scientifically accurate method of determining whether a person is intoxicated, removes the question from the field of speculation and supplies the best evidence for that determination. [Code § 18.2-268.2] protects one who has the odor of alcohol on his breath but has not been drinking to excess, and one whose conduct may create the appearance of intoxication when he is suffering from some physical condition over which he has no control.

Id. at 683, 133 S.E.2d at 319 (discussing former Code § 18.1-55, the predecessor to Code § 18.2-268.2).

Relying primarily upon Walton and the salutary purpose of the statutory scheme of obtaining two blood samples, Thurston asserts that without a sample for independent analysis he "is at risk of being mistakenly convicted" and is "at the mercy of the state's testing division and subject to any bias or mistakes on the part of that division." In short, he asserts that because he was denied a separate blood sample to which he was entitled, it was error to admit the results of the city's blood test against him. The City responds that its failure to provide the separate sample resulted solely from Thurston's conduct. It asserts that Thurston prevented the completion of the blood removal procedure and, thus, cannot complain that a sample for the second vial was not obtained in order for him to have obtained an independent analysis. For reasons that will become apparent, in order to address the legal issues raised by these contrasting assertions, it is necessary that we first clarify the factual conflicts supporting them.

There is no dispute that only one blood sample was obtained and that sample was sent to the state laboratory. The dispute is whether Thurston was at fault for the City's failure to provide him with a separate sample for independent testing and whether, regardless of his conduct, an "adequate portion" was obtained for that purpose. Thurston first argues that his act of jerking his arm was involuntary and resulted solely from the "excruciating pain" caused by the needle used to draw a sample of his blood. He supports this argument by referring to the bruising around the area where the nurse inserted the needle in his vein and his immediate complaints of pain. However, the trial court specifically found that Thurston's act in removing the needle and thus interrupting the blood removal procedure was a voluntary act. On appeal we are not fact finders. Rather, where the trial court's factual finding is supported by credible evidence and is not plainly wrong, we are bound by that determination. See Keener v. Commonwealth 8 Va.App. 208, 214, 380 S.E.2d 21, 25 (1989). Here, the trial court's factual finding that Thurston's interruption of the blood removal procedure was a voluntary act is supported by credible evidence and is not plainly wrong. Accordingly, we must resolve this appeal in light of that factual finding and not Thurston's assertion that his act was involuntary.

The determination that Thurston voluntarily interrupted the completion of the blood removal procedure brings Thurston's next assertion into proper focus. Thurston argues that, regardless of his act of interrupting the blood removal procedure, because no evidence was...