Barie Tyrone Polhamus v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Fitzpatrick and
Senior Judge Hodges
Argued at Alexandria, Virginia
BARIE TYRONE POLHAMUS
v. Record No. 1703-94-4 MEMORANDUM OPINION * BY
JUDGE WILLIAM H. HODGES
COMMONWEALTH OF VIRGINIA OCTOBER 31, 1995
FROM THE CIRCUIT COURT OF RAPPAHANNOCK COUNTY
William Shore Robertson, Judge
Roger A. Inger (Massie, Inger, Boyd & Iden,
P.C., on brief), for appellant.
Robert B. Beasley, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Barie Tyrone Polhamus (appellant) was convicted of driving
under the influence of alcohol, second offense in ten years. On
appeal, appellant contends that the Commonwealth failed to prove
that a blood test, to measure his blood alcohol content, was
reasonably unavailable at the time of his arrest. We disagree
and affirm the judgment of the trial court.
I.
At 5:35 p.m., on Sunday, January 30, 1994, in Rappahannock
County, Virginia State Trooper Sean Knick stopped appellant for
speeding. As a result of the stop, Knick charged appellant with
driving under the influence of alcohol. Knick advised appellant
of the implied consent law, but told him that in Rappahannock
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
County, no blood test was available. A breath test subsequently
was administered to appellant, who voiced no objection to that
test. The test showed a blood alcohol content of .15 percent by
weight by volume.
Trooper Knick testified that he was the only trooper on duty
in Rappahannock County at the time he stopped appellant. Knick
testified that he was aware of no facility or qualified person
authorized to perform the blood test in Rappahannock County, that
during the five and one-half years he had worked as a trooper he
had never been aware of such a facility or person located in the
county, and that the State Police policy during that entire
period had been that no blood test was available in Rappahannock
County.
Knick stated that the nearest facility available for a blood
test would be Fauquier Hospital in Warrenton. The trooper was
not permitted to leave Rappahannock County without first
notifying his supervisor. Knick testified that had he left
Rappahannock County to take appellant to Fauquier Hospital, a
trip which would have required over an hour to complete, no
trooper would have been on duty in Rappahannock County.
Trooper Knick and Rappahannock County Sheriff John Woodward
testified that state troopers, not sheriff's deputies,
investigate traffic accidents in Rappahannock County. 1 Sheriff
1
An exception, not applicable in this case, is a minor
traffic accident, without injury, which occurs during the
midnight shift.
2
Woodward testified that during the 4:00 p.m. to midnight shift on
Saturdays and Sundays, two deputies are on patrol, in a single
car, in the county. Woodward stated that the deputies are not
permitted to leave Rappahannock County.
Woodward also testified that, with the exception of a period
of six to nine months when a Ms. Rustic performed blood tests, he
was aware of no facility or individual in the county that was
authorized to draw or analyze blood. The Rappahannock Medical
Center, the only clinic facility in the county, had refused to
administer the blood test. 2 The policy of the sheriff's
department was that a blood test was not available.
The trial court, relying on this Court's opinion in Talley
v. Commonwealth, 16 Va. App. 473, 431 S.E.2d 65 (1993), found
that the unavailability of the blood test, under these
circumstances, was reasonable. Appellant, thereafter, entered a
conditional guilty plea to the charge.
II.
Code § 18.2-268.2(B), in effect at the time of appellant's
arrest, provided that a motorist arrested for driving under the
influence of alcohol "shall elect to have either a blood or
3
breath sample taken . . . . "
2
The Commonwealth introduced letters, dated September 10,
1985, and June 15, 1994, from Dr. Jerry W. Martin, of the
Rappahannock Medical Center, to the Commonwealth's Attorney,
Peter Luke, stating the clinic's unavailability for such tests.
3
Effective January 1, 1995, Code § 18.2-268(B) requires that
an arrested person "shall submit to a breath test. If the breath
test is unavailable or the person is physically unable to submit
3
If either test is unavailable, the accused
must take the available test, and the
unavailability of the other test may not be
asserted as a defense. Only if both tests
are available is the accused entitled to
choose the test to be administered. Once an
accused elects to take either the blood or
the breath test, if the election is not
honored because of unavailability, the
Commonwealth must establish a valid reason
for the lack of availability of the test
requested.
Snead v. Commonwealth, 17 Va. App. 372, 374, 437 S.E.2d 239, 241
(1993) (citation omitted). "The reasonableness of the
Commonwealth's explanation is determined from a review of all the
facts, and courts must subject these facts to particular scrutiny
when 'office procedures' are cited in support of an assertion
that one test was unavailable at the time of the defendant's
arrest." Commonwealth v. Gray, 248 Va. 633, 636, 449 S.E.2d 807,
809 (1994).
An accused, moreover, has no duty to demand a particular
test in order to be entitled to it. Rather, the Commonwealth is
required to instruct an accused as to his or her statutory
options. Sullivan v. Commonwealth, 17 Va. App. 376, 379, 437
S.E.2d 242, 244 (1993). "If the defendant 'consents' to one test
or the other without being fully informed of her or his options
under the statute, the defendant has not truly 'elected' one test
over the other as required by law." Id.
In Talley, the Powhatan County Sheriff's Department had a
to the breath test, a blood test shall be given."
4
policy whereby after-hours blood tests could be obtained at a
hospital in nearby Chesterfield County, "as long as more than one
field officer was on duty to cover the county." Talley, 16 Va.
App. at 476, 431 S.E.2d at 67. Talley was arrested by a Powhatan
sheriff's deputy one minute before the only other deputy on duty
was scheduled to end his shift. The arresting officer advised
Talley that he believed the blood test to be unavailable. In
fact, the deputy scheduled to go off duty administered the breath
test, over forty minutes after Talley's arrest.
We held in Talley that "the policy in this case was neither
arbitrary nor capricious; facially or as applied, the policy was
reasonable in order to ensure that one field deputy was available
within the county at all times." Talley, 16 Va. App. at 476, 431
S.E.2d at 67. See also Mason v. Commonwealth, 15 Va. App. 583,
585-86, 425 S.E.2d 544, 545-46 (1993) (Commonwealth established
reasonable basis for unavailability of blood test where arresting
officer was only state police officer on duty in Powhatan County
on evening of arrest, and he had orders not to leave the county).
Here, Trooper Knick was the only state trooper on duty in
Rappahannock County at the time of appellant's arrest. State
troopers investigate all traffic accidents in the county during
the evening shift. Knick could not leave the county without
first notifying his supervisor. At most, the sheriff's
department had only two deputies, in one vehicle, patrolling the
roads, and the sheriff forbade his deputies to leave the county.
5
No facility or individual authorized to administer the blood
test was known to be available in Rappahannock County at the time
of appellant's arrest. 4
In this case, as in Talley, the policy that a blood test was
unavailable in Rappahannock County is neither arbitrary nor
capricious, but was reasonable based on the limited number of
officers available to serve the locality and the absence of
facilities or persons within the county to administer such tests.
We hold that the trial court did not err in finding that the
Commonwealth had provided a reasonable explanation for the
unavailability of the blood test. Accordingly, we affirm
appellant's conviction.
Affirmed.
4
This case is distinguishable from Snead v. Commonwealth, 17
Va. App. 372, 437 S.E.2d 239 (1993). In Snead, "[t]he
Commonwealth's evidence proved only that, as a matter of police
department policy, no public facility for taking a blood sample
is available on a twenty-four hour basis in Hanover County." 17
Va. App. at 374-75, 437 S.E.2d at 241. In this case, Sheriff
Woodward testified that the clinic in Rappahannock had refused.
He also stated that no one other than Ms. Rustic, temporarily,
had been available to perform the test. He testified that no
doctor maintains an office in the county, and no laboratory
authorized to draw or analyze blood is located there. When asked
if he was aware of any registered nurse, lab technician or other
private facility, Woodward stated, "None to my knowledge that has
ever come forward." On cross-examination, Woodward stated that
he was aware from a previous court case that two doctors, who
work in Culpeper, live in Rappahannock County.
6