Jacob Jackson Felts v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Bumgardner
Argued at Salem, Virginia
JACOB JACKSON FELTS
MEMORANDUM OPINION * BY
v. Record No. 1997-98-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
OCTOBER 5, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GRAYSON COUNTY
J. Colin Campbell, Judge
James T. Ward (Joseph H. McGrady; McGrady &
McGrady, on briefs), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
Jacob Jackson Felts (appellant) was convicted of aggravated
involuntary manslaughter, in violation of Code § 18.2-36.1(B),
by causing death as the result of driving an automobile while
under the influence of alcohol. On appeal, he argues the trial
court erred in refusing to suppress the certificate and results
of his blood alcohol analysis. For the following reasons, we
affirm.
I.
"In reviewing a trial court's denial of a motion to
suppress, '[t]he burden is upon [the defendant] to show that
*
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
th[e] ruling, when the evidence is considered most favorably to
the Commonwealth, constituted reversible error.'" McGee v.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)
(en banc) (citation omitted). While we are bound to review de
novo the ultimate questions of reasonable suspicion and probable
cause, we "review findings of historical fact only for clear
error 1 and . . . give due weight to inferences drawn from those
facts by resident judges and local law enforcement officers."
Ornelas v. United States, 517 U.S. 690, 699 (1996) (footnote
added).
The evidence established that Trooper James Blevins
(Blevins) received a dispatch at 11:26 p.m. to investigate an
accident in Grayson County, Virginia. Upon his arrival at the
accident scene, Blevins found appellant's wrecked vehicle, which
had been traveling southbound on Highway 89. He described the
accident as follows:
[The car] had run off the right shoulder of
the roadway traveling two hundred and
seventy-six (276) feet. . . . Then it had
reentered the roadway as it was traveling
South and gone, was going broadside for one
hundred and ninety (190) feet before it
struck the bank. Then it went on another
sixty-six (66) feet, struck a culvert in a
driveway. At this time, the vehicle went
airborne and crossed a woven wire
fence. . . . Went airborne for one hundred
and fifty (150) feet, then it came back in,
1
"In Virginia, questions of fact are binding on appeal
unless 'plainly wrong.'" McGee, 25 Va. App. at 198 n.1, 487
S.E.2d at 261 n.1 (citations omitted).
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to the ground and made a large area in the
field. It went back in the air. Traveled
approximately seventy-five (75) more feet
and continued on, crossed a, through a fence
and struck some pine trees, two hundred and
twenty-five (225) feet from where it had
come down from being airborne for a hundred
and fifty (150) feet. The total distance of
this accident measured nine hundred seven
(907) feet.
The car came to rest "on its top after it struck a tree." The
weather was clear, and the road was dry. Blevins found a wine
bottle and loose beer bottles on the ground at the scene near
the vehicle. Commonwealth's Exhibit 9, a photo of the inside of
the car, showed beer bottles inside the vehicle. A passenger in
appellant's car, Carl Moser, was pronounced dead at the scene.
When Blevins arrived, rescue workers "had [appellant]
loaded" in their emergency vehicle to transport him to Twin
County Regional Hospital. At the hospital, medical personnel
attended to appellant’s injuries. "[T]hey told [Blevins] that
[appellant] was going to be taken to Baptist Hospital pretty
soon." Blevins advised appellant of his Miranda rights and of
the implied consent law, after which appellant voluntarily
agreed to take a blood test. At 2:46 a.m., a lab technician
withdrew the blood. The parties stipulated that the blood
sample was taken three (3) hours and twenty-six (26) minutes
after the accident. An analysis of the blood sample revealed
appellant's blood alcohol content to be ".08% by weight by
volume."
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Dr. James Valentour was qualified as an expert in
toxicology. Based on minimum and maximum dissipation rates, he
opined that, at the time of the accident, appellant's blood
alcohol would have been between "a .11 or .12 to as high as .19
or .20." Valentour described how certain amounts of alcohol
affect one's physical abilities. Based on his data, Valentour
opined that appellant was under the influence of alcohol at the
time of the accident.
The trial court refused to suppress the blood test results.
However, it ruled that, because appellant was not timely
arrested, "the results of the tests creates [sic] no legal
presumption of intoxication." Because appellant "was being
transported to another hospital in another state, . . . exigent
circumstances justified the taking of the defendant's blood
without a search warrant." The trial court relied solely on the
testimony of the toxicologist to interpret and explain the
significance of the blood alcohol content of appellant's blood.
Appellant was subsequently tried by the court and
stipulated to the following:
[I]f the Court considers the evidence of the
blood together with the evidence presented
by the Commonwealth at the suppression
hearing and evidence contained in the
transcript of the preliminary hearing, it
would be sufficient to convict beyond a
reasonable doubt of . . . some degree of
involuntary manslaughter.
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Although the trial court relied solely on the testimony of the
toxicologist at the suppression hearing, he nevertheless
admitted the certificate of analysis into the record at trial.
Based on the evidence presented and accepting appellant's
stipulation, the trial court convicted appellant of aggravated
involuntary manslaughter, in violation of Code § 18.2-36.1.
II.
Appellant contends that the trial court erred in refusing
to suppress the results of the blood alcohol analysis. Because
he was arrested over two hours after the alleged offense,
appellant asserts that he did not consent to have his blood
alcohol tested. Moreover, appellant contends that because he
showed no indications that he was intoxicated, the officer had
no probable cause to arrest him and take a blood sample based on
exigent circumstances. 2
The Commonwealth concedes on appeal, as it did at trial,
that because police failed to arrest appellant for driving under
the influence of alcohol within two hours of the accident, the
statutory presumptions of Code § 18.2-269 were inapplicable.
2
As a preliminary matter, the Commonwealth argues that Rule
5A:18 bars appellant from arguing on appeal that Blevins had no
probable cause to arrest him and take a blood sample based on
exigent circumstances. We conclude from the transcript that the
trial court specifically found that "exigent circumstances
justified the taking of [appellant's] blood without a search
warrant" and defense counsel objected to this ruling.
Therefore, Rule 5A:18 does not bar our review of the merits of
this appeal. See Wright v. Commonwealth, 4 Va. App. 303, 305,
357 S.E.2d 547, 549 (1987).
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However, the Commonwealth asserts that other evidence presented,
including the testimony of the toxicologist and the photographs
of the accident scene, proved appellant's intoxication at the
time of the accident.
A person arrested for driving under the influence within
two hours of such offense is deemed to have consented to a blood
alcohol test. See Code § 18.2-268.2. 3 Test results that are
obtained in compliance with the requirements of Code
§ 18.2-268.2 are entitled to certain rebuttable presumptions.
See Code § 18.2-269. 4 However, if an accused driver is not
3
Code § 18.2-268.2 provides in pertinent part:
Any person, whether licensed by Virginia or
not, who operates a motor vehicle upon a
highway, . . . in this Commonwealth shall be
deemed thereby, as a condition of such
operation, to have consented to have samples
of his blood, breath, or both blood and
breath taken for a chemical test to
determine the alcohol, drug, or both alcohol
and drug content of his blood, if he is
arrested for violation of § 18.2-266 or
§ 18.2-266.1 or of a similar ordinance
within two hours of the alleged offense.
4
Code § 18.2-269 provides in pertinent part:
A. In any prosecution for [involuntary
manslaughter under Code § 18.2-36.1,] . . .
the amount of alcohol in the blood of the
accused at the time of the alleged offense
as indicated by a chemical analysis of a
sample of the accused's blood or breath to
determine the alcohol content of his blood
. . . shall give rise to the following
rebuttable presumptions:
* * * * * * *
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timely arrested, his or her consent is considered invalid,
prohibiting the Commonwealth from relying on the statutory
presumption. See Essex v. Commonwealth, 228 Va. 273, 286, 322
S.E.2d 216, 223 (1984); Castillo v. Commonwealth, 21 Va. App.
482, 490-91, 465 S.E.2d 146, 150 (1995).
The facts of the instant case are remarkably similar to
those in Tipton v. Commonwealth, 18 Va. App. 370, 444 S.E.2d 1(1994). In both cases, the defendant was injured in an
accident, was about to be transported for medical care, was read
the implied consent law, and a blood sample was taken. See id.
at 371-72, 444 S.E.2d at 2. In both cases, the blood tests were
administered more than two hours after the accident, and the
Commonwealth relied upon expert testimony to establish the blood
alcohol level in each defendant's blood. See id.Similar to Tipton, the Commonwealth in the instant case
conceded at trial that it was not relying on the rebuttable
presumption of Code § 18.2-269 to prove appellant's
intoxication. See id. at 372, 444 S.E.2d at 2. Instead, the
Commonwealth asserted that the officer was entitled to conduct a
search of appellant and seize his blood because there was
(3) If there was at that time 0.08 percent
or more by weight by volume of alcohol in
the accused's blood or 0.08 grams or more
per 210 liters of the accused's breath, it
shall be presumed that the accused was under
the influence of alcohol intoxicants at the
time of the alleged offense.
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sufficient probable cause to justify a search and exigent
circumstances existed to justify noncompliance with the warrant
requirement of the Fourth Amendment. 5 See id. at 372-73, 444
S.E.2d at 2.
Based upon the rationale in Tipton, we conclude that the
results of the blood alcohol analysis, as introduced through the
testimony of the toxicologist, was properly admitted as other
relevant evidence that appellant was driving under the influence
of alcohol. Despite the absence of a timely arrest or warrant,
a person may be required to submit to a search, here, a blood
test, based on probable cause and exigent circumstances. See
id. at 373, 441 S.E.2d at 3 (noting that a blood test is a
"search" within the meaning of the Fourth Amendment). Such
warrantless searches do not violate any constitutional rights so
long as the search is supported by probable cause, the evidence
5
The Commonwealth's Attorney stated the following:
We're not asking the Court to admit this
blood analysis of the defendant under
18.2-268 or any part of that for any
presumption of its content. The
Commonwealth would assert that this falls
under other relevant evidence and by that
we're not, the Commonwealth [concedes] that
we do not get any presumption under [Code
§ 18.2-269]. . . . And I guess we want to
make it crystal clear, we're not asking [for
the benefit of the presumption]. We don't
think we can have that. We think any
evidence as to the alcohol or the influence
of alcohol would have to come in through
basically the toxicologist.
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is of an evanescent nature, and the means and procedures
employed are reasonable. See Schmerber v. California, 384 U.S.
757, 768-71 (1966); see also Tipton, 18 Va. App. at 373-74, 441
S.E.2d at 3. Thus,
exigent circumstances justif[y] warrantless
seizure of a blood sample for alcohol level
analysis when police ha[ve] probable cause
to arrest and fear[ ] loss of evidence by
dissipation of alcohol in the blood.
However, a warrantless search of that kind
will be upheld only if (1) the process is a
reasonable one which is performed in a
reasonable manner; (2) there was in advance
"a clear indication that in fact [the
evidence sought] will be found;" and (3)
there were exigent circumstances, such as a
need to take the test before the percentage
of alcohol in the blood diminished.
Tipton, 18 Va. App. at 373, 441 S.E.2d at 3 (citing Schmerber,
384 U.S. at 766-72).
In this case, the presence of wine and beer at the scene
inside the wrecked car, and the distance and manner that
appellant's car traveled after leaving the road, established
sufficient probable cause of involuntary manslaughter and
driving under the influence to enable Blevins to obtain a
warrant for a search of appellant. See Schmerber, 384 U.S. at
768-71; Tipton, 18 Va. App. at 373-74, 441 S.E.2d at 3. Due to
the evanescent nature of blood alcohol and because appellant was
being transported to another hospital, we agree that exigent
circumstances justified the warrantless arrest and search of
appellant. See id. Moreover, because the Commonwealth relied
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on expert opinion to explain the significance of appellant's
blood alcohol level and did not rely on the presumption in Code
§ 18.2-269, the trial court did not err in allowing the test
results in evidence. See id. at 374, 444 S.E.2d at 3.
Accordingly, we affirm appellant's conviction.
Affirmed.
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