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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Retired Judge Brown
Argued at Salem, Virginia
Record No. 2015-02-3
ROBERT ELVIN INGRAM
COMMONWEALTH OF VIRGINIA
BY JUDGE JAMES W. BENTON, JR.
SEPTEMBER 16, 2003
FROM THE CIRCUIT COURT OF WYTHE COUNTY
J. Colin Campbell, Judge
Deborah Caldwell-Bono for appellant.
(Jerry W. Kilgore, Attorney General;
H. Elizabeth Shaffer, Assistant Attorney
General, on brief), for appellee. Appellee
submitting on brief.
A police officer arrested Robert Elvin Ingram for driving
while intoxicated in violation of Code ? 18.2-266. The sole
on appeal is whether the officer violated Code ? 18.2-268.6
he did not allow Ingram to keep the form, which explained the
procedure for an independent analysis of his blood after Ingram
had read and signed the form. We hold that this action violated
the statute, and we reverse the conviction.
Ingram filed a motion to suppress evidence and dismiss the
prosecution for the officer’s failure to substantially comply
Code ? 18.2-268.6. The evidence at the hearing proved that
Virginia State Police Trooper Paul Savel saw a vehicle
on an interstate highway. After the trooper stopped the vehicle
and approached it, he smelled a strong odor of alcohol about
Ingram, the driver. The trooper asked Ingram to perform sobriety
tests and arrested Ingram when he was unable to perform them
satisfactorily. The trooper later took Ingram to a hospital
where blood was drawn for a blood alcohol test.
At the hospital, the trooper handed Ingram his clipboard
and a form titled, "Form Prescribing the Procedure to
Independent Analysis of Blood Sample and Lists of Laboratories
Approved by the Division of Forensic Science." Ingram
the box on the form beside the following words: "I do not
elect to have the second sample (in the BLUE box) sent for an
independent analysis of alcohol, but acknowledge that I/my
counsel may do so within 72 hours by advising the chief police
officer as described in the instruction." The trooper
that Ingram read the form, signed it, and returned it without
asking questions. The trooper did not provide Ingram a copy of
the form to retain.
At the conclusion of the hearing, the trial judge denied
the motion to suppress. The trial judge later convicted Ingram
on his conditional guilty plea. See Code ? 19.2-254. This
appeal challenges the judge’s ruling on the motion.
Ingram contends the trooper failed to substantially comply
with Code ? 18.2-268.6 because he did not give a copy of the
form to Ingram after Ingram read and signed it. Ingram argues
that the clear language of the statute required the trooper to
give him the form to retain in order that he or his attorney
could "writ[e] on the form provided hereinabove" and
independent analysis. We agree.
Following an arrest pursuant to Code ? 18.2-266 and the
taking of two vials of blood for testing, the Code specifies
procedures for handling the blood. See Code ? 18.2-268.2. At
the time of these events, Code ? 18.2-268.6 provided in
pertinent part as follows:
Immediately after taking possession of the
second container, the officer shall give to
the accused a form provided by the Division
which sets forth the procedure to obtain an
independent analysis of the blood in the
second container, and a list of the names
and addresses of laboratories approved by
the Division. The form shall contain a
space for the accused or his counsel to
direct the officer possessing the second
container to forward it to an approved
laboratory for analysis, if desired. If the
accused directs the officer in writing on
the form to forward the second container to
an approved laboratory of the accused’s
choice, the officer shall do so.
If the accused does not direct
otherwise on the form, the officer having
the second container shall deliver it to the
chief police officer. The chief police
officer, upon receiving the container, shall
retain it for a period of seventy-two hours,
during which time the accused or his counsel
may, in writing on the form provided
hereinabove, direct the chief police officer
to mail the second container to the
laboratory the accused has chosen from the
(Emphasis and footnote added).
"In this Commonwealth, courts are required to apply the
plain meaning of statutes, and we are not free to add language,
nor to ignore language, contained in statutes." Signal
Keane Federal Systems, Inc., 265 Va. 38, 46, 574 S.E.2d 253, 257
(2003). Applying this principle of statutory construction, we
held in Artis v. City of Suffolk, 19 Va. App. 168, 450 S.E.2d
165 (1994), that "[m]erely showing the form to an accused
time a blood sample is taken is insufficient to comply with the
requirement of the statute that ['the officer shall give'] the
form . . . to the accused." Id. at 170, 450 S.E.2d at 166.
ordinary parlance, "give" means "to confer the
without receiving a return" or "to put in possession
for his use." Webster’s Third New International Dictionary
(1993). Requiring the accused to read, sign, and return the
form does not satisfy the statutory mandate to "give to the
accused" the form.
In addition to the plain meaning of the statute, the
statutory scheme clearly contemplates that the accused will
retain possession of a form because it provides that within
seventy-two hours "the accused or his counsel may, in
on the form provided hereinabove, direct the chief police
officer to mail the second container [of blood] to the
laboratory the accused has chosen from the approved list."
? 18.2-268.6 (emphasis added). The practical consequences of
the legislative intent also support this conclusion. The notice
the form conveys to a person who is accused of being impaired
will have little meaning if that person is not allowed to retain
a form specifying the procedure. The form contains a list of
laboratories and addresses that few people are likely to absorb
and retain upon a mere reading. Without a copy of the form,
neither the accused nor his counsel will have the means to give
the chief police officer notice within seventy-two hours in the
statutorily required manner.
As in Artis, the trooper’s failure to give the accused a
form for his use affected his substantive rights.
[T]he failure to comply with that
requirement of the statute negates the
possibility of "substantial compliance."
Provision for the independent analysis
designation form is intended to safeguard
the right of an accused to seek an
independent analysis of his blood. Having
held that merely showing the form to the
accused is insufficient to accomplish the
requirements of Code ? 18.2-268.6, it is
self-evident that this safeguard has not
been achieved in actuality or in substance.
Accordingly, [the Commonwealth has not]
substantially complied with the requirements
of the statute.
19 Va. App. at 171, 450 S.E.2d at 167.
For these reasons, we reverse the conviction and dismiss
Reversed and dismissed.
Bumgardner, J., dissenting.
I dissent. The trooper gave the defendant a proper form on
which to make his election for an independent test. The
defendant made the election on the form and returned it. I do
not believe the trooper was required to give the defendant
another form in case he changed his mind.
J. Howe Brown, Jr., took part in the
consideration of this case by designation pursuant to Code
Code ? 17.1-413, this opinion is not
designated for publication.
In 2003, the
legislature amended this section to provide a
substantially different method for obtaining an independent
analysis of the blood. See 2003 Va. Acts of Assembly, chs. 933,