Young v. Commonwealth of Va..

• Decision Date: 01 March 2011
• Docket Number: Record No. 2216–09–2.
• Citation: 57 Va.App. 731,706 S.E.2d 53
• Parties: Keith Orlando YOUNGv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

57 Va.App. 731

706 S.E.2d 53

Keith Orlando YOUNG

v.COMMONWEALTH of Virginia.

Record No. 2216–09–2.

Court of Appeals of Virginia, Richmond.

March 1, 2011.

Benjamin H. Woodbridge, Jr. (Woodbridge, Ventura & Coleman, P.C., on brief), for appellant.Susan M. Harris, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: HUMPHREYS, KELSEY and HALEY, JJ.HALEY, Judge.

I. INTRODUCTION

Appealing his conviction for driving under the influence, a second offense within five years, in violation of Code § 18.2–266, Keith Orlando Young argues that because he was not arrested within three hours of the offense, the certificate of analysis used to convict him was inadmissible under Virginia's implied consent law. We disagree and affirm.

II. BACKGROUND

On October 24, 2008, at approximately 7:00 p.m., Young ran a stop sign and crashed into an SUV.¹ Young's car landed in a ditch with the driver's side door suspended in the air. Emergency personnel extricated him from the passenger side of the vehicle and slid him onto a backboard. Young was bleeding from his head and, according to emergency personnel, had a “very strong” odor of beer emanating from his person. His speech was slurred, and he could not tell them his name. Young became combative and emergency workers “had to tie his arms down” and strap him to the backboard.

At approximately 7:40 p.m., Virginia State Trooper G.F. Finch arrived at the scene and saw Young “fighting the medical personnel.” When he approached, Finch noticed Young had glassy eyes, slurred speech, and a “strong odor of alcoholic beverage on his breath.” When questioned by Trooper Finch, Young admitted he had been drinking prior to driving the vehicle and that the accident occurred at approximately 7:00 p.m. Trooper Finch observed in Young's vehicle two bottles of brandy and a cooler containing two cans of beer, one of which was open.

Trooper Finch followed the ambulance transporting Young to Mary Washington Hospital. They arrived at approximately 9:20 p.m., and Young was promptly admitted. While Young was lying in the hospital bed hooked to IVs, Finch told him he was under arrest and advised him of his Miranda rights and the implied consent law. Finch testified Young was not free to leave at that point. Young verbally consented to have his blood drawn. After Finch took possession of vials of Young's blood, he released Young from custody on a Virginia Uniform Summons pursuant to Code § 19.2–73. At the time of the offense, Code § 19.2–73 provided, in pertinent part, “If any person under suspicion for driving while intoxicated has been taken to a medical facility for treatment or evaluation of his medical condition, the arresting officer at the medical facility may issue ... a summons for a violation of Code § 18.2–266.”

In November 2008, the Department of Forensic Science completed a certificate of analysis after performing tests on the blood sample drawn from Young at the hospital. The certificate indicated that Young's blood alcohol content on the night of the accident was 0.22% by weight by volume.²

At trial, Young objected to the admission of the certificate of analysis. He contended that the certificate was inadmissible because he was not under arrest as required by Code § 18.2–268.2 before his blood sample was taken. The trial court overruled Young's motion stating, “I have to give plain meaning to the terms of the statute, and under § 19.2–73, paragraph B, the trooper has the authority, after he's placed him under arrest, to issue a summons, and that's what he did, so I'm going to overrule your motion.” At the close of evidence, the trial court overruled Young's motion to strike the evidence and found him guilty of driving while intoxicated.

III. ANALYSIS

Code § 18.2–268.2, Virginia's implied consent statute, provides in pertinent part:

Any person ... who operates a motor vehicle upon a highway ... in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood ... taken for a chemical test if he is arrested for driving while intoxicated within three hours of the alleged offense.

(Emphasis added).

On appeal, Young argues that because the arresting officer “did not, at any time, accompany his arrest of Appellant with any physical act then Appellant was not subject to the implied consent law.” Appellant's Br. at 7 (emphasis added). Thus, Young continues, absent a timely arrest, the “Commonwealth [had] no right to collect the sample in the first place and, a fortiori, even less right to offer into evidence test results based on the sample.” Cutright v. Commonwealth, 43 Va.App. 593, 601, 601 S.E.2d 1, 5 (2004). See also Overbee v. Commonwealth, 227 Va. 238, 243, 315 S.E.2d 242, 244 (1984) (stating an untimely arrest results in exclusion of test results). Indeed, “failure to comply with Code § 18.2–268.2 or companion statutes precludes introduction of the relevant test results in proof of DUI.” Williams v. Commonwealth, 38 Va.App. 414, 420, 565 S.E.2d 328, 331 (2002). See also Smith v. Commonwealth, 32 Va.App. 228, 233, 527 S.E.2d 456, 459 (2000) (noting unlawful arrest negates implied consent and renders test results inadmissible).

Under common law, the “mere words of an officer stating to a suspect that he is ‘under arrest’ are not sufficient to constitute an arrest.” Bristol v. Commonwealth, 272 Va. 568, 573, 636 S.E.2d 460, 463 (2006) (citing California v. Hodari D., 499 U.S. 621, 627, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991)).³ Quoting from Professor Perkins's seminal work on the subject, Hodari D. held the common law also requires the officer to have some physical contact with the arrestee (even a slight “touching” suffices) or, absent such contact, the arrestee must submit to the officer's assertion of authority. Hodari D., 499 U.S. at 626–27, 111 S.Ct. at 1550–51 (citing Rollin M. Perkins, The Law of Arrest, 25 Iowa L.Rev. 201, 206 (1940)); see also Hall v. Commonwealth, 280 Va. 566, 571, 701 S.E.2d 68, 71 (2010), aff'g, 55 Va.App. 451, 686 S.E.2d 554 (2009) (applying these common law principles, holding an individual was in custody for purposes of the escape statute, Code § 18.2–478, when the officer “spoke words of arrest and actually touched Hall for the stated purpose of arrest”).

While an officer's mere words, telling a suspect he is under arrest, are insufficient to constitute an arrest, Hodari D., 499 U.S. at 626, 111 S.Ct. at 1550–51, they do constitute an assertion of his authority. It is axiomatic that where the officer does not make any assertion of authority, a suspect cannot submit to him and, therefore, there can be no arrest. See, e.g., Sprouse v. Commonwealth, 53 Va.App. 488, 491, 673 S.E.2d 481, 482 (2009) (finding no arrest because the officer did not use any physical force, and “[a]t no point following the accident did [the officer] indicate to [the suspect] that he was under arrest”).

Common law principles of arrest, however, must be applied in harmony with applicable statutes. “A number of the states,” Perkins explained, have enacted statutes authorizing an officer “to issue a summons himself, as the issuance of a ‘ticket’ to appear for a violation of the traffic laws.” Perkins, supra, at 207. Statutes enacted for this purpose “may require the officer to make an arrest prior to the issuance of such a summons,” id. (emphasis added), or they may authorize the issuance of a summons instead of an arrest. These two statutory approaches—issuing a summons either “in lieu of arrest” or “after an initial arrest,” Knowles v. Iowa, 525 U.S. 113, 115, 119 S.Ct. 484, 486, 142 L.Ed.2d 492 (1998) (summarizing an Iowa statute)—determine the necessity, timing, and scope of an arrest.

The General Assembly has enacted several such statutes. Code § 19.2–74(A)(1), for example, authorizes an “arresting officer” to issue a summons releasing an arrestee from the officer's custody under certain conditions. If the “arresting officer” reasonably believes the arrestee will disregard the summons or cause harm to himself or others, the arrestee cannot be released from the officer's custody. Id. If the arrestee, after being released, fails to later appear in court as directed by the summons, he may be charged with failure to appear in addition to “the charge upon which he was originally arrested.” Code § 19.2–74(A)(3); see also Code § 46.2–936 (authorizing release on summons for a misdemeanor charge).

A similar statute governs suspected drunk drivers who are “taken to a medical facility” for treatment or evaluation. Code § 19.2–73(B). The version of Code § 19.2–73(B) in effect at the time of Young's arrest authorized an “arresting officer” to issue a summons “in lieu of securing a warrant” for a suspected drunk driver who has been taken to a medical facility.⁴ This statute recognizes the reality that an individual receiving medical treatment cannot be taken into physical custody. If the arrestee later violates the summons by not appearing in court as directed, he may be convicted for failing to appear as well as for the DUI “charge upon which he was originally arrested.” Code § 19.2–73(C) (emphasis added).

“It is a settled rule of construction that all statutes in pari materia should be read and construed together, as if they formed parts of the same statute and were enacted at the same time.” Dillard v. Thornton, 70 Va. (29 Gratt.) 392, 396 (1877). The “doctrine of pari materia teaches that ‘statutes are not to be considered as isolated fragments of law, but as a whole, or as parts of a great, connected homogenous system, or a simple and complete statutory arrangement.’ ” Dep't of Motor Vehicles v. Wallace, 29 Va.App. 228, 234, 511 S.E.2d 423, 425 (1999) (quoting Moreno v. Moreno, 24 Va.App. 190, 198, 480 S.E.2d 792, 796 (1997)). Therefore, “proper construction seeks to harmonize the provisions of a statute both internally and in relation to other statutes.”...