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OCTOBER 5, 1999

Record No. 1997-98-3





J. Colin Campbell, Judge

Present: Chief Judge Fitzpatrick, Judges
Coleman and Bumgardner

Argued at Salem, Virginia


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

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.


"In reviewing a trial court’s denial of a
motion to suppress, ‘[t]he burden is upon [the defendant] to show
that 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, 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."

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.

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.


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.

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. 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.
However, if an accused driver is not
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 sufficient probable cause to justify a search
and exigent circumstances existed to justify noncompliance with
the warrant requirement of the Fourth Amendment.
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 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 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


* Pursuant to Code ? 17.1-413,
recodifying Code ? 17-116.010, this opinion is not
designated for publication.



[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

[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).

[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:

* * * * * * *

(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.

[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