Opinion
Record No. 0351-92-4
March 8, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY MICHAEL P. MCWEENY, JUDGE.
David M. Hall, for appellant.
Leah A. Darron, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
I. BACKGROUND
Appellant, Eric Peter Hilberath, was convicted of driving while intoxicated. On appeal, he contends the trial judge erred in admitting the certificate of analysis into evidence because: (1) the Commonwealth failed to establish a proper chain of custody, and (2) the circuit court clerk failed to provide appellant with a copy of the certificate seven days before trial upon request. We disagree and affirm.
On November 22, 1991, the same date he was convicted in district court, appellant filed an appeal to the circuit court. In a letter to the clerk of the circuit court, filed and dated Monday, November 25, 1991, defense counsel requested copies of all certificates of analysis performed in the case styled "Commonwealth v. Eric Hilberath," "[p]ursuant to Code § 19.2-187." The letter requested that any certificates be provided at least seven days prior to the trial "which is presently scheduled for February 20, 1992." In a letter sent to defense counsel dated December 13, 1991, the clerk's office indicated "[t]here is no Circuit Court case number under that name." Noting that there were a number of traffic violations, the letter asked "Is your request in reference to a traffic case? If so, Circuit Court has jurisdiction over traffic files from 1982 through 1984. More current years can be obtained from General District Traffic Court. I'm sorry we cannot be of assistance to you otherwise."
During the February 20, 1992 bench trial, Officer R. A. Jenkins testified that he stopped appellant's car on July 1, 1991 because of its speed and the manner in which it was operated. After field sobriety tests were administered, appellant was arrested for driving while intoxicated. Appellant requested a blood test, and two samples were taken. Jenkins testified that he mailed one sample to the Division of Consolidated Laboratories (Division).
The other evidence was stipulated by counsel and included a representation by R. D. Cook whose name appears on the certificate of analysis as both receiving the sample and testing it. Although his name was on the certificate as receiving the blood, Cook would testify that a mailroom technician initially received the blood sample and delivered it to him for testing. Cook could not say who this technician was, however, "[h]e would testify that it was the Division's ordinary procedure that certain mailroom technicians received the blood samples that were mailed to the Division . . . and that Cook's name was [commonly] typed on the Certificate as being the individual who received the blood" despite his not being that individual.
Appellant objected to admission of the certificate based on an improper chain of custody and because the clerk failed to send him a copy of the certificate seven days before trial pursuant to his request. The trial court admitted the certificate without commenting on the chain of custody argument. As to appellant's request for test results, the trial court explained that the request "was deficient in that it did not provide the Clerk enough information to enable compliance with the Code." The court pointed out that the request omitted "a file number of the case, did not indicate the offense" which appellant faced, and "failed to state the fact that the case was a misdemeanor appeal."
II. CHAIN OF CUSTODY
Subsections (K) and (L) of Code § 18.2-268 specifically deal with the transmission and use of blood test results in cases involving driving under the influence of alcohol or drugs. Code §§ 19.2-187 and 19.2-187.01 provide generally for the admission into evidence of certificates of analysis. Former Code § 18.2-268(K) and (L) provides in pertinent part:
Subsequent to appellant's conviction, the legislature amended Code § 18.2-268. Code § 18.2-268.7 presently encompasses former Code § 18.2-268(K)-(L).
K. Upon receipt of the blood sample forwarded to the Division for analysis, the Division shall cause it to be examined for alcoholic . . . content and the Director of the Division or his designated representative shall execute a certificate which shall indicate the name of the accused, the date, time and by whom the blood sample was received and examined, a statement that the seal on the vial had not been broken or tampered with, a statement that the container was one provided by the Division and a statement of the alcoholic and drug content of the sample. The certificate shall accompany the vial from which the blood sample examined was taken and shall be returned to the clerk of the court in which the charge will be heard.
L. When any blood sample taken in accordance with the provisions of this section is forwarded for analysis to the Division, a report of the results of such analysis shall be made and filed in that office. Upon proper identification of the vial into which the blood sample was placed, the certificate as provided for in this section shall, when duly attested by the Director of the Division or his designated representative, be admissible in any court, in any criminal or civil proceeding, as evidence of the facts therein stated and of the results of such analysis.
Code § 19.2-187.01 states, in pertinent part:
A report of analysis duly attested by the person performing such analysis or examination in any laboratory operated by . . . the Division . . . shall be prima facie evidence in a criminal or civil proceeding as to the custody of the material described therein from the time such material is received by an authorized agent of such laboratory until such material is released subsequent to such analysis or examination. . . . The signature of the person who received the material for the laboratory on the request for laboratory examination form shall be deemed prima facie evidence that the person receiving the material was an authorized agent and that such receipt constitutes proper receipt by the laboratory for purposes of this section.
(Emphasis added.)
Code § 18.2-268(K) requires a designated representative to execute a certificate indicating "by whom the blood sample was received." Unlike Code § 19.2-187.01, Section 18.2-268 does not require receipt by an authorized agent or that a request for examination form be signed in order for test results to be admissible.
"When one statute speaks to a subject in a general way and another deals with a part of the same subject in a more specific manner, the two should be harmonized, if possible, and where they conflict, the latter prevails." Virginia Nat'l Bank v. Harris, 220 Va. 336, 340, 257 S.E.2d 867, 870 (1979);see also Penton v. City of Norfolk, ___ Va. App. ___, 428 S.E.2d 309 (1993).
Because Code § 18.2-268 is the more specific statute and directly applies to blood alcohol test results, we find it applicable to the facts of this case. On its face, the certificate complies with the provisions of Code § 18.2-268: it contains Cook's signature as the person who received and examined the blood sample; it contains an attestation that the container's seal had not been broken or tampered with; and it is signed by the Director's designee. The fact that Cook did not receive the blood sample in the mailroom does not invalidate the certificate. Under Code § 18.2-268(Z), a certificate attesting to the results of a blood-alcohol analysis is self-authenticating as evidence of intoxication as long as the Commonwealth substantially complies with the steps detailed in the statute. Essex v. Commonwealth, 228 Va. 273, 286, 322 S.E.2d 216, 223 (1984). In Wendel v. Commonwealth, 12 Va. App. 958, 962, 407 S.E.2d 690, 692 (1991), this Court examined substantial compliance as defined in Code § 18.2-268(Z), and held that "failure to comply with any of the procedural steps in taking, handling, identifying and disposing of the blood or breath samples shall not of itself be grounds . . . for rejecting the test results." Accordingly, we find that the Commonwealth substantially complied and the certificate was, therefore, admissible.
III. REQUEST FOR TEST RESULTS
Appellant filed his appeal to the circuit court on November 22, 1991, the same day he was convicted in the district court. On Monday, November 25, 1991, he requested copies of any certificates of analysis.
Although the request contains the correct style of the case and the date it was scheduled for trial, appellant was notified by the clerk's office that more information was required. The clerk's response specifically asked appellant, "Is your request in reference to a traffic case?" The record, however, indicates that appellant did nothing from November 25, 1991 until February 20, 1992, the day of trial, to clarify his request in response to the clerk's inquiry.
"A trial judge's factual determinations will not be disturbed on appeal unless plainly wrong or without evidence to support them." Smith v. Commonwealth, ___ Va. App. ___, ___, 435 S.E.2d 414, 416 (1993). Appellant never provided the clerk's office with the case number or type of offense. Accordingly, we cannot say that the trial judge was plainly wrong in finding that appellant's request was "deficient" and did not provide enough information for the clerk to comply.
For the reasons stated, we affirm.
Affirmed.