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Present: Judges Benton, Bumgardner and Retired Judge Brown[1]

Argued at Salem, Virginia

Record No. 2015-02-3






SEPTEMBER 16, 2003


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
Obtain an

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
request an

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

approved list.[3]

(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
Corp. v.

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
at the

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
ownership of

without receiving a return" or "to put in possession
of another

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

the charge.

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.



[1]Retired Judge
J. Howe Brown, Jr., took part in the

consideration of this case by designation pursuant to Code

? 17.1-400.


[2]Pursuant to
Code ? 17.1-413, this opinion is not

designated for publication.


[3]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,