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MARCH 3, 1998
Record No. 0833-97-2





Thomas V. Warren, Judge
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia

Jonathan S. David (Joseph D. Morrissey; Morrissey, Hershner &
Jacobs, on brief), for appellant.

Daniel J. Munroe, Assistant Attorney General (Richard Cullen,
Attorney General, on brief), for appellee.

Curtis S. Snider was convicted in a bench trial of operating a
motor vehicle upon a public highway while under the influence of
alcohol, in violation of Code ? 18.2?266.
He contends the trial judge erred by admitting into evidence the
blood alcohol analysis because the procedure for extracting his
blood did not substantially comply with statutory requirements.
Snider also contends the evidence was insufficient to convict him
of the crime. We disagree and affirm his conviction.

The evidence at trial proved that when State Trooper Olinger
arrived to investigate a one?vehicle accident in Amelia County,
Snider had walked away. When Snider returned to his vehicle, he
told Trooper Olinger that he slid off the road while turning to
avoid several deer. Trooper Olinger noticed that Snider’s eyes
were bloodshot and glassy and that his body had an odor of
alcohol. Although Trooper Olinger noticed that Snider’s speech
was slurred, she testified that Snider’s speech could have been
affected by an injury to his lip. Trooper Olinger testified that
Snider denied consuming any alcohol after the accident and
admitted that he consumed four beers before the accident. He said
he consumed the last beer one?half hour before the accident.

Trooper Olinger arrested Snider and transported him to have a
blood test performed. Trooper Olinger was present when a nurse
withdrew Snider’s blood for the test. When the Commonwealth
offered as evidence the certificate of analysis of Snider’s
blood, Snider’s defense counsel objected to its admission because
Trooper Olinger did not know whether the nurse cleansed Snider’s
arm before extracting blood. The trial judge overruled the
objection and admitted the certificate of analysis, which
indicated that Snider’s blood had an alcohol content of .10 by
weight by volume.

In his defense, Snider testified that his car went into a
ditch after he swerved to avoid several deer. When no one passed
after twenty minutes, he retrieved a pack of six beers from his
vehicle and began to walk. During a two?mile walk, he drank four
or five beers. When asked if he remembered Trooper Olinger
questioning him about drinking after the accident, Snider
testified, "she asked me, but I can’t remember the before or
after . . . . I said that I had been

The trial judge convicted Snider of driving under the
influence of alcohol in violation of Code ? 18.2?266.

Admissibility of Blood Test Results

In pertinent part, the implied consent statute provides as

For purposes of this article, only a physician, registered
professional nurse, graduate laboratory technician or a
technician or nurse designated by order of a circuit court
acting upon the recommendation of a licensed physician, using
soap and water, polyvinylpyrrolidone iodine or benzalkonium
chloride to cleanse the part of the body from which the blood
is taken and using instruments sterilized by the accepted
steam sterilizer or some other sterilizer which will not
affect the accuracy of the test, or using chemically clean
sterile disposable syringes, shall withdraw blood for the
purpose of determining its alcohol or drug or both alcohol
and drug content.

Code ? 18.2?268.5.
The legislature has clearly indicated in the following statutory
language that strict compliance with some parts of the implied
consent law will not be required:

The steps set forth in [Code] ?? 18.2?268.2
through 18.2?268.9 relating to taking, handling,
identifying, and disposing of blood or breath samples are
procedural and not substantive. Substantial compliance shall
be sufficient
. Failure to comply with any steps or
portions thereof, . . . shall go to the weight
of the evidence and shall be considered with all the evidence
in the case; however, the defendant shall have the right to
introduce evidence on his own behalf to show noncompliance
with the aforesaid procedures or any part thereof, and that
as a result his rights were prejudiced.

Code ? 18.2?268.11
(emphasis added). See Artis v. City of Suffolk, 19
Va. App. 168, 171, 450 S.E.2d 165, 167 (1994) (holding that
"where there is substantial compliance, any deficiency in
the required procedures is a matter of weight and sufficiency of
the evidence to be determined by the trier of fact"). The
burden is on the Commonwealth to show that it substantially
complied with the requirements of the statute. See Kemp
v. Commonwealth
, 16 Va. App. 360, 365, 429 S.E.2d 875, 878

Snider argues that the Commonwealth did not meet its burden of
proving substantial compliance with Code ? 18.2?268.5 because
the evidence did not establish what, if any, solution was used to
cleanse Snider’s arm before the blood was withdrawn. Snider
relies on Hudson v. Commonwealth, 21 Va. App. 184, 462
S.E.2d 913 (1995), where this Court held that using benadine to
cleanse the driver’s arm before a blood test did not constitute
substantial compliance with Code ? 18.2?268.5 because
no evidence of benadine’s chemical properties was presented at
trial. Id. at 186, 462 S.E.2d at 914. Snider argues that
the circumstances here are more egregious than in Hudson
because either an unknown solution or no solution was used on his

In another context, the Supreme Court of Virginia has ruled
that, in determining the question of substantial compliance,
"a minor, trivial difference can be tolerated whereas a
material difference cannot." Akers v. James T. Barnes of
Washington, D.C., Inc.
, 227 Va. 367, 370, 315 S.E.2d 199, 201
(1984). "The principle of substantial compliance, which is
predicated upon a failure of strict compliance with applicable
requirements, operates to replace the protective safeguards of
specificity with a less exacting standard of elasticity, in order
to achieve a beneficial and pragmatic result." Coleman v.
, 219 Va. 143, 158, 246 S.E.2d 613, 622 (1978). We
believe these general standards can be applied to the requirement
of the implied consent law, where the mischief to be avoided is
contamination of the blood that is being extracted for the blood
alcohol test. In Hudson, the evidence proved that the area
from which the blood sample was extracted was, in fact,
contaminated by benadine, a solution whose chemical properties
were not proved. The evidence in this record proved that,
although Trooper Olinger watched the nurse extract blood from
Snider’s arm, Trooper Olinger could not recall whether the nurse
used a solution to prepare Snider’s arm. Thus, unlike Hudson,
the evidence in this case leaves uncertain whether any solution
was used to cleanse Snider’s arm before the blood test.

The evidence proved that a properly designated nurse took the
sample. See Code ? 18.2?268.5;
Brooks v. City of Newport News, 224 Va. 311, 315, 295
S.E.2d 801, 803 (1982) (holding that the qualifications of the
person who performs the test "is a matter of substance, not
procedure"). Because the evidence did not establish whether
a solution was used to prepare Snider’s arm for the blood
extraction, we can only speculate that contamination could have
occurred. No evidence in the record proved that the nurse’s
failure to cleanse Snider’s arm caused a contamination which
affected the accuracy of the test. See Shumate v.
, 207 Va. 877, 881?83, 153 S.E.2d 243, 247
(1967) (holding that substantial compliance existed even where
"it was not shown who took the blood [and] whether soap and
water were used to cleanse the place at which the blood was

In other circumstances, we have ruled that "[w]here there
is mere speculation that contamination . . . could
have occurred, it is not an abuse of discretion to admit the
evidence and let what doubt there may be go to the weight to be
given the evidence." Reedy v. Commonwealth, 9 Va.
App. 386, 391, 388 S.E.2d 650, 652 (1990). In view of the
statutory mandate that substantial compliance suffices to
establish the procedural steps of taking the blood, we conclude
that the failure to prove whether a solution was used to prepare
a suspect’s arm goes to the weight of the evidence, not its
admissibility. See Code ? 18.2?268.11;
Stroupe v. Commonwealth, 215 Va. 243, 245, 207 S.E.2d 894,
896 (1974); Artis, 19 Va. App. at 171, 450 S.E.2d at 167.
Accordingly, we cannot say the trial judge abused his discretion
in admitting into evidence the certificate of blood analysis.
Furthermore, Snider retained "the right to introduce
evidence on his own behalf to show noncompliance with the
aforesaid procedures . . . and that as a result
his rights were prejudiced." Code ? 18.2?268.11. See
Stroupe, 215 Va. at 245, 207 S.E.2d at 896
(observing that the statute allows the defendant to prove by the
nurse the particulars of extracting his blood).

Sufficiency of the Evidence

Snider next argues that even if his blood alcohol content
exceeded the legal limit to operate a motor vehicle, the
Commonwealth failed to prove that he consumed alcohol prior to
the accident or that he did not consume alcohol after the

"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v.
, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987). So viewed, the evidence proved that Trooper Olinger
noticed that Snider’s speech was slurred, his eyes were bloodshot
and glassy, and he had an odor of alcohol about his person.
Because of those observations, Trooper Olinger asked Snider if he
had consumed alcohol after the accident. Snider told her that he
did not have anything to drink after the accident. He told her
that he consumed four beers before the accident, the last being
about thirty minutes prior to the accident. Snider disputed only
in part Trooper Olinger’s testimony concerning his statement. He
testified that he did not remember Trooper Olinger asking him
whether he drank "before or after" the accident; he
testified that he told her he had been drinking.

The trial judge accepted Trooper Olinger’s testimony and did
not believe Snider’s testimony that he consumed the alcohol after
the accident. "The weight which should be given to evidence
and whether the testimony of a witness is credible are questions
which the fact finder must decide." See Bridgeman
v. Commonwealth
, 3 Va. App. 523, 528, 351 S.E.2d 598, 601
(1986). Trooper Olinger’s testimony was competent, was not
inherently incredible, and, combined with the results of the
blood alcohol test, was sufficient to prove beyond a reasonable
doubt that Snider was guilty of driving while under the influence
of alcohol.

For these reasons, we affirm the conviction.


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