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 ...