Opinion
Record No. 1258-91-4
February 23, 1993
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY RICHARD J. JAMBORSKY, JUDGE
Paul J. Duggan, pro se.
H. Elizabeth Shaffer, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Barrow, Benton, and Coleman
Argued at Alexandria, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Paul Joseph Duggan was convicted of driving under the influence of alcohol in violation of Code § 18.2-266. Alleging that the technician who withdrew his blood was not authorized, Duggan contends that the trial judge erred in allowing into evidence the certificate of analysis of the blood. Duggan also has filed in connection with this appeal a motion to file a brief amicus curiae. That motion is opposed by the Commonwealth. For the reasons that follow, we affirm the conviction and deny the motion to file a brief amicus curiae.
I.
Pursuant to Rule 5A:8(c) of the Rules of the Supreme Court, a written statement of facts, testimony, and other incidents of the case was filed. That statement established that at 2:30 a.m. on December 2, 1990, a Virginia State Police Officer stopped Paul Joseph Duggan on an interstate highway. Duggan's vehicle attracted the officer's attention because it weaved to the center of the highway and straddled the center line for approximately three hundred feet. The vehicle then swerved to the right and almost struck a concrete barrier on the side of the highway. The officer stopped Duggan and detected a strong odor of alcohol emanating from Duggan. The officer also noted that Duggan's eyes were bloodshot and that his speech was slurred. As Duggan fumbled for his operator's license, he told the officer that he had been drinking. Duggan failed several coordination tests and elected to take a blood test.
Asserting that the laboratory technician who withdrew his blood was not authorized to do so under Code § 18.2-268(F), Duggan moved to suppress the certificate of analysis containing the result of the blood test. The motion was denied. At trial, the Commonwealth introduced an order entered by a circuit judge on September 14, 1990, authorizing a laboratory technician, Frederick D. Smith, to withdraw blood under the provisions of Code § 18.2-268(F). The certificate of analysis then was admitted into evidence over Duggan's objection. The certificate of analysis indicated that Duggan had a blood alcohol content of .15 percent. On this evidence, Duggan was convicted of driving under the influence of alcohol.
II.
At the time of these events, the pertinent part of the "implied consent" statute stated:
Only a physician, registered professional nurse, graduate laboratory technician or a technician or nurse designated by order of a circuit court acting upon the recommendation of a licensed physician . . . shall withdraw blood for the purpose of determining the alcoholic or drug or both alcoholic and drug content thereof.
Code § 18.2-268(F).
The evidence proved Duggan's blood was drawn by Fredrick Smith. Furthermore, the record contains an order entitled, "In Re: Designation of Laboratory Technicians pursuant to Section 18.2-268F of the Code of Virginia, 1950, as amended," that states the following:
Richard K. Miller, a licensed physician and Director of Health Services, Fairfax County Health Department, having recommended that Laboratory Technician Fredrick D. Smith be designated by the Court under the provisions of and for the purposes designated by Section 18.2-268F of the Code of Virginia aforesaid; it is hereby
ADJUDGED and ORDERED that Laboratory Technician FREDRICK D. SMITH be, and he hereby is, designated as authorized to withdraw blood in the performance of his duties with the Alcohol Safety Action Project under the provisions of Section 18.2-268F aforesaid for the purpose of determining the alcoholic content thereof, which designation is subject to all of the duties and responsibilities provided for in said Section 18.2-268F, and comparable provisions of the Ordinance of Fairfax County.
Duggan argues that because Smith was not acting under the auspices of the Alcohol Safety Action Project when he withdrew Duggan's blood sample, Smith was unauthorized to perform that task. The argument is meritless. Nothing in the statute requires that the order identify the laboratory technician's place of employment. The record proves that the order appointing Smith was entered by the circuit court, that Smith was a laboratory technician, that Smith was recommended by a licensed physician, and that the order authorized Smith to withdraw blood pursuant to Code § 18.2-268(F). The language in the order specifying Smith's place of employment was not statutorily required and had no substantive bearing on the technician's qualifications. We conclude that the specification of Smith's place of employment was surplusage and did not limit his authority. See generally Morris v. Smith, 223 Va. 5, 7, 286 S.E.2d 151, 152 (1982); Carter v. Commonwealth, 209 Va. 317, 322-23, 163 S.E.2d 589, 594 (1968); Pettus v. Peyton, 207 Va. 906, 910, 153 S.E.2d 278, 280 (1967). Accordingly, the trial judge did not err in ruling that the blood was withdrawn by a statutorily authorized technician.
III.
After this appeal was perfected, Duggan filed a motion to admit a brief amicus curiae. The brief amicus curiae was tendered to this Court by Duggan but was signed by Richard E. Adams, Transportation Safety Programs Manager of the Virginia Department of Motor Vehicles. Excluding the signature page and the certificate of mailing, the brief amicus curiae is twenty pages in length and is identical to the first twenty pages of Duggan's appellant's brief. In opposition to the motion, the Commonwealth argues that the brief amicus curiae should be stricken because (1) Adams is not licensed to practice law; thus, his signature does not comply with Rule 5A:20(g) (a brief amicus curiae must contain "[t]he signature . . . of at least one counsel and his address"), and (2) because Adams asserts by affidavit that "[a]t no time did Mr. Duggan explain to me that the document I signed was in fact a Brief Amicus Curiae."
We deny the motion to file the brief amicus curiae. The brief does not purport to be filed by Adams in his individual capacity. Instead, it names Adams as representative of the Transportation Safety Program of the Virginia Division of Motor Vehicles. Because the brief does not purport to be filed on behalf of Adams individually, it does not comply with Rules 5A:23(c) and 5A:20(g). In addition, Adams's affidavit strongly suggests that the circumstances surrounding the obtaining of the signature on the brief amicus curiae were such that he did not knowingly and intentionally sign the brief for the purpose of presenting views to this Court as amicus curiae. See generally, Samuel Krislov, The Amicus Curiae Brief: From Friendship to Advocacy, 72 Yale L.J. 694 (1963); Comment,The Amicus Curiae, 55 N.W. U.L. Rev. 469 (1960). Therefore, we deny Duggan's motion to file the brief amicus curiae.
For these reasons, we affirm the judgment of circuit court convicting Duggan of driving under the influence of alcohol.
Affirmed.