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Wolfe v. Commonwealth

Court of Appeals of Virginia

December 13, 2016

SEAN PATRICK WOLFE
v.
COMMONWEALTH OF VIRGINIA

         FROM THE CIRCUIT COURT OF LOUDOUN COUNTY Stephen E. Sincavage, Judge.

          J. Daniel Griffith (Westlake Legal Group, on brief), for appellant.

          Craig W. Stallard, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Petty, O'Brien and Russell Argued at Alexandria, Virginia.

          OPINION

          MARY GRACE O'BRIEN JUDGE.

         Sean 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.

         BACKGROUND

         We 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 Detention Center.

         Once 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.

         After 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%.

         ANALYSIS

         A. Assignment of Error 1

         Appellant 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 ...

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