December 13, 2016
SEAN PATRICK WOLFE
COMMONWEALTH OF VIRGINIA
THE CIRCUIT COURT OF LOUDOUN COUNTY Stephen E. Sincavage,
Daniel Griffith (Westlake Legal Group, on brief), for
W. Stallard, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Present: Judges Petty, O'Brien and Russell Argued at
GRACE O'BRIEN JUDGE.
Patrick Wolfe ("appellant") was convicted by a jury
of driving while intoxicated, in violation of Code §
18.2-266. On appeal, he asserts that the trial court erred by
failing to suppress his blood test results and by admitting
evidence of the arresting officer's attempts to obtain a
breath test prior to drawing appellant's blood. Finding
no error, we affirm.
review the evidence in the light most favorable to the
prevailing party, the Commonwealth. Whitehurst v.
Commonwealth, 63 Va.App. 132, 133, 754 S.E.2d 910, 910
(2014). So viewed, the evidence established that at
approximately 2:45 a.m. on November 9, 2014, Loudoun County
Deputy Sheriff Timothy Iverson stopped appellant's
vehicle for traveling sixty-six miles per hour in a
forty-five-mile-per-hour zone. Appellant was alone in the
vehicle. Based on an odor of alcohol emanating from the car,
Deputy Iverson conducted several field sobriety tests that
appellant failed. After a preliminary breath test indicated
that appellant's blood alcohol content was .182%, Deputy
Iverson placed appellant under arrest for driving under the
influence of alcohol and transported him to the Adult
there, Deputy Iverson attempted to administer a breath test
to appellant. He advised appellant that during a
twenty-minute observation period prior to the test, appellant
was not permitted to belch, burp, vomit or regurgitate.
Despite these instructions, appellant burped three times.
the second time that appellant burped, Deputy Iverson
informed him that if he burped again, the deputy would
arrange for a blood test instead of restarting the
observation period for a breath test. Appellant responded
that he did not like needles and did not want a blood test.
When appellant burped for the third time, Deputy Iverson took
him to get a blood test without obtaining a search warrant
for appellant's blood. Appellant did not verbally or
physically refuse the blood test. The Virginia Department of
Forensic Science analyzed the blood sample and determined
that appellant's blood alcohol content was .196%.
Assignment of Error 1
asserts the following assignment of error:
The trial court erred by failing to grant Appellant's
Motion to Suppress the results of the blood test conducted on
a sample of the Appellant's blood drawn on November 9,
2014 since the Appellant did not consent to the withdrawal of
the sample from his body and the County did not obtain a
search warrant prior to obtaining the sample.
appeal of the denial of a motion to suppress, the defendant
bears the burden of showing that the trial court committed
reversible error. Whitehead v. Commonwealth, 278 Va.
300, 306-07, 683 S.E.2d 299, 301 (2009). "[W]e are bound
by the trial court's findings of historical fact unless
'plainly wrong' or without evidence to support
them." McGee v. Commonwealth, 25 Va.App. 193,
198, 487 S.E.2d 259, 261 (1997) (en banc). However,
"we review de novo the trial court's
application of legal standards . . . to the particular facts
of the case." McCracken v. Commonwealth, 39
Va.App. 254, 258, 572 S.E.2d 493, 495 (2002). To the extent
that this Court interprets the language of a statute,
"we rely on the familiar principles of statutory
construction, and review [the] issue de novo."
Hines v. Commonwealth, 59 Va.App. 567, 573, 721
S.E.2d 792, 795 (2012).
asserts that Deputy Iverson violated his Fourth Amendment
rights when the deputy obtained appellant's blood without
a search warrant. The Fourth Amendment provides:
[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no [w]arrants shall
issue, but upon probable cause, supported by [o]ath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
administration of a blood test constitutes a search, and is
subject to the requirements of the Fourth Amendment.
Missouri v. McNeely, 133 S.Ct. 1552, 1558 (2013);
see also Schmerber v. California, 384 U.S.
757, 767-68 (1966). The issue, therefore, becomes whether
blood drawn without a warrant in an investigation for driving
under the influence is an unreasonable search. See
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646,
is well settled under the Fourth and Fourteenth Amendments
that a search conducted without a warrant issued upon
probable cause is 'per se unreasonable . . .
subject only to a few specifically established and
well-delineated exceptions.'" Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973) (quoting Katz
v. United States, 389 U.S. 347, 357 (1967)). "[O]ne
of the specifically established exceptions to the
requirements of both a warrant and probable cause is a search
that is conducted pursuant to consent." Id.
case before us, the Commonwealth contends that the results of
the warrantless blood test were admissible because appellant
consented to the test pursuant to Code § 18.2-268.2(A)
("the implied consent statute"). The statute
A. Any person, whether licensed by Virginia or not, who
operates a motor vehicle upon a highway . . . in the
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 §
B. Any person so arrested for a violation of clause (i) or
(ii) of § 18.2-266 or both . . . shall submit to a
breath test. If the breath test is unavailable or the person
is physically unable to submit to the breath test, a blood
test shall be given.
Code § 18.2-268.2.
constitutional validity of the implied consent statute is
well established. In Deaner v. Commonwealth, 210 Va.
285, 288-89, 170 S.E.2d 199, 201 (1969) ("The criminal
offense which gives rise to the procedure under the Implied
Consent Law is driving under the influence of alcohol or
drugs. The same motor vehicle operation may give rise to two
separate and distinct proceedings - one a civil and
administrative procedure and the other a criminal
action."), the Supreme Court of Virginia held that a
violation of the implied consent statute is a civil action,
and is separate and apart from the criminal prosecution for
driving under the influence of alcohol. See also Cash v.
Commonwealth, 251 Va. 46, 49, 466 S.E.2d 736, 738 (1996)
(holding that "[t]he consent to submit to a blood or
breath test, granted when a person operates a motor vehicle
upon the highways, 'is not a qualified consent and it is
not a conditional consent, and therefore there can be no
qualified refusal or conditional refusal to take the
test'" (quoting Deaner, 210 Va. at 292, 170
S.E.2d at 204)).
Rowley v. Commonwealth, 48 Va.App. 181, 629 S.E.2d
188 (2006), we reiterated the determination that the implied
consent statute is civil in nature and does not implicate the
Fourth Amendment. We held that this "[implied] consent
is not 'qualified' or 'conditional.'"
Id. at 187, 629 S.E.2d at 191 (quoting
Cash, 251 Va. at 49, 466 S.E.2d at
to appellant's arguments, the Supreme Court's recent
decision in Birchfield v. North Dakota, 136
S.Ct. 2160 (2015), has not implicated the constitutional
validity of Virginia's implied consent statute as it
relates to civil penalties for refusing a blood alcohol test.
Birchfield, the Supreme Court addressed the issue of
whether blood tests obtained without a warrant are
permissible "based on the driver's legally implied
consent to submit to them." Id. at 2185. The
Court "referred approvingly to the general concept of
implied consent laws that impose civil penalties and
evidentiary consequences on motorists who refuse to comply .
. . and nothing [written in Birchfield] . . . should
be read to cast doubt on them." Id. However,
the Court drew a distinction between statutes that impose
civil penalties and those that impose criminal penalties:
[i]t is another matter, however, for a State not only to
insist upon an intrusive blood test, but also to impose
criminal penalties on the refusal to submit to such a test.
There must be a limit to the consequences to which motorists
may be deemed to have consented by virtue of a decision to
drive on public roads.
Id. The Court found that when a defendant faced a
criminal penalty for refusing a warrantless blood draw, the
search cannot be justified on the basis of implied consent.
Id. at 2186.
Code § 18.2-268.2 provides the basis for the
Commonwealth's position that appellant implicitly
consented to have his breath or blood tested after he was
driving on a public highway. Significantly, appellant was not
exposed to a criminal penalty if he refused the breath or
blood test. Code § 18.2-268.3(D) provides that "[a]
first violation of [the refusal statute] is a civil offense
and subsequent violations are criminal offenses. For a first
offense the court shall suspend the defendant's privilege
to drive for a period of one year." There was no
evidence that appellant was threatened with a criminal
prosecution for a subsequent violation of Code §
18.2-268.3(D); therefore, the Supreme Court's restriction
on warrantless blood draws under the implied consent
exception in Birchfield does not apply.
are not permitted to interpret any statute, such as
Virginia's implied consent statute, in a way that
'"would render the statute strained, ambiguous,
illogical, and in contravention of the legislature's
clear intent."'" Patterson v.
Commonwealth, 62 Va.App. 488, 498, 749 S.E.2d 538, 543
(2013) (quoting Saunders v. Commonwealth, 56 Va.App.
139, 145, 692 S.E.2d 252, 255 (2010)). In conducting a plain
reading of Code § 18.2-268.2, it is clear that all of
the requirements were met to establish appellant's
implied consent to the blood draw. See also Rowley,
48 Va.App. at 184 n.1, 629 S.E.2d at 190 n.1 ("If a
breath test is unavailable or the suspect is physically
unable to perform the breath test, the suspect must submit to
a blood test."). After determining that he had probable
cause to arrest appellant for a violation of Code §
18.2-266, Deputy Iverson attempted to administer a breath
test to appellant. Because appellant was unable to stop
burping, despite the deputy's instructions, Deputy
Iverson transported him to the hospital where his blood was
drawn for testing. Therefore, we find that the court did not
err in denying appellant's motion to suppress the blood
test results after finding that appellant's blood draw
was lawful under the implied consent exception to the search
Assignment of Error 2
contends that the trial court erred in allowing testimony
about his failure to take the breath test. "The
admissibility of evidence is within the broad discretion of
the trial court, and a ruling will not be disturbed on appeal
in the absence of an abuse of discretion." Blain v.
Commonwealth, 7 Va.App. 10, 16, 371 S.E.2d 838, 842
(1988); see also Farley v. Commonwealth, 20 Va.App.
495, 498, 458 S.E.2d 310, 311 (1995) (stating that
"[t]he admission of evidence is left to the broad
discretion of the trial judge").
argues that Code § 18.2-268.10 prohibits the
Commonwealth from commenting on his failure to permit a
breath or blood sample to be taken. Code § 18.2-268.2(B)
[a]ny person so arrested for a violation of clause (i) or
(ii) of § 18.2-266 . . . shall submit to a breath test.
If the breath test is unavailable or the person is physically
unable to submit to the breath test, a blood test shall be
Commonwealth is required to establish the unavailability of a
breath test under the provisions of Code § 18.2-268.2(B)
before it can compel a defendant to take a blood test.
See Lemay v. Commonwealth, 29 Va.App. 461,
476, 513 S.E.2d 411, 418 (1999) (evidence of a
defendant's physical inability to perform a breath test
under Code § 18.2-268.2 was admissible during trial);
Brown-Fitzgerald v. Commonwealth, 51 Va.App. 232,
656 S.E.2d 422 (2008).
Code § 18.2-268.10(B) provides that "[t]he failure
of an accused to permit a blood or breath sample to be taken
to determine the alcohol or drug content of his blood is not
evidence and shall not be subject to comment by the
Commonwealth at the trial of the case, " this statute
applies in a situation where a defendant has unreasonably
refused to have his blood or breath taken. Evidence of an
unreasonable refusal cannot be introduced to establish that a
defendant was driving under the influence of alcohol.
See, e.g., Calhoun v. Commonwealth, 35
Va.App. 506, 509, 546 S.E.2d 239, 241 (2001) (stating that
"the refusal to take the [breath] test . . . has no
probative value as to guilt or innocence").
present case, appellant did not refuse to take a breath test.
The deputy determined that a breath test could not be
successfully completed because of appellant's burping.
Presenting the evidence of appellant's physical inability
to submit to a breath test was a foundational requirement for
a blood test to be performed pursuant to Code §
18.2-268.2. Therefore, evidence of appellant's inability
to perform the breath test was appropriately before the jury
to explain why a blood test was performed. We find that the
court properly admitted the evidence for that purpose.
foregoing reasons, the decision of the trial court is
 Appellant argues that his statement to
Deputy Iverson that he did not like the idea of needles and
therefore did not want a blood test constituted a revocation
of his implied consent. He correctly recognizes that we have
previously held that "[t]he act of driving constitutes
an irrevocable, albeit implied, consent to the officer's
demand for a breath sample, " Rowley, 48
Va.App. at 187, 629 S.E.2d at 191, but argues that this
statement is no longer good law after the Supreme Court's
decision in Birchfield v. North Dakota, 136 S.Ct.
2160 (2015). We need not address this argument because
Wolfe's statements, taken in context, do not establish
that he refused to consent to a blood test. See Ervin v.
Commonwealth, 57 Va.App. 495, 503, 704 S.E.2d 135, 139
(2011) ("We must defer . . . to the factfinder's
responsibility . . . '"to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate
facts."'" (quoting Abdullah v.
Commonwealth, 53 Va.App. 750, 755, 675 S.E.2d 215, 218
(2009))). The statements were made as the deputy was advising
appellant that he would have to take appellant for a blood
test if appellant didn't stop burping. Further, Deputy
Iverson testified that he did not need to physically coerce
appellant into taking a blood test or verbally cajole him
into cooperating with the test after appellant was unable to
provide a breath sample. Finally, had Wolfe refused to permit
a blood or breath test, the deputy would have been required
to advise Wolfe of the provisions of the implied consent
statute; there is no evidence that this ever
 Appellant also asserts that in
McNeely, 133 S.Ct. 1552, the Supreme Court rejected
the admission of warrantless blood test results in a
prosecution for driving under the influence of alcohol.
However, in McNeely, the Court merely ruled that
"in drunk-driving investigations, the natural
dissipation of alcohol in the bloodstream does not constitute
an exigency in every case sufficient to justify conducting a
blood test without a warrant." Id. at 1568. The
Court did not address the constitutionality of implied
consent statutes; therefore, because the admissibility of the
blood test results in the case before us is based on the
consent exception, the Court's limited holding is not
relevant to our analysis.