Isaac Amaya-Portillo, s/k/a v. CW ( 1997 )


Menu:
  •                      COURT OF APPEALS OF VIRGINIA
    Present:  Chief Judge Fitzpatrick, * Judge Elder and
    Senior Judge Duff
    Argued at Alexandria, Virginia
    ISAAC AMAYA-PORTILLO, S/K/A
    ISAAC DEJESUS AMAYA-PORTILLO
    MEMORANDUM OPINION**
    v.        Record No. 2559-96-4            BY JUDGE CHARLES H. DUFF
    DECEMBER 9, 1997
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
    William T. Newman, Jr., Judge
    Sean D. O'Malie (Pelton, Balland, Young,
    Demsky, Baskin & O'Malie, P.C., on brief),
    for appellant.
    Eugene Murphy, Assistant Attorney General
    (Richard Cullen, Attorney General, on brief),
    for appellee.
    In a bench trial, Isaac Amaya-Portillo (appellant) was
    convicted in the Circuit Court of Arlington County of driving
    while under the influence of alcohol (DUI).    On appeal, appellant
    argues that the trial court erred in admitting the Commonwealth's
    certificate of analysis pertaining to a blood sample obtained
    from him on the night of his arrest.    Finding no error, we affirm
    appellant's conviction.
    "On appeal, we review the evidence in the light most
    favorable to the Commonwealth, granting to it all reasonable
    inferences fairly deducible therefrom."     Maynard v. Commonwealth,
    *
    On November 19, 1997, Judge Fitzpatrick succeeded Judge
    Moon as chief judge.
    **
    Pursuant to Code § 17-116.010, this opinion is not
    designated for publication.
    
    11 Va. App. 437
    , 439, 
    399 S.E.2d 635
    , 637 (1990) (en banc).
    So viewed, the evidence demonstrated that on August 13,
    1995, appellant was arrested for DUI following an automobile
    accident.    After being advised of Virginia's implied consent law,
    appellant elected a blood test.
    A registered nurse withdrew two vials of blood from
    appellant, sealed and boxed the vials individually, and gave the
    boxes to Officer Carolyn Jackson-Clark, the officer who arrested
    appellant.   Neither of the vials was cracked or damaged when the
    nurse placed them inside the boxes.     Officer Jackson-Clark put
    the sealed boxes in the refrigerator in the property unit of the
    police station later in her shift.      She noticed nothing unusual
    about the boxes at that time.
    Preston Johnson, a property clerk for the Arlington County
    Police Department, removed the boxes containing appellant's blood
    samples from the refrigerator on August 17, 1995.     The boxes were
    sealed and did not appear to be leaking.     Johnson attached
    property control numbers to the boxes and put them in the
    refrigerator in the evidence room.
    On August 18, 1995, Johnson took the boxes from the
    refrigerator, placed postage upon them, and put the two packages
    in a mailbox.   Johnson mailed one of the boxes to Valley Medical
    Laboratories, which appellant had selected on the night of his
    arrest to conduct an independent analysis of the second vial of
    blood withdrawn from him.   The other box was mailed to the
    -2-
    Division of Forensic Science.   The boxes showed no signs of
    leakage when Johnson mailed them.
    The certificate of analysis produced by Valley Medical
    Laboratories indicated that the laboratory had been unable to
    test the blood sample contained in the box because "the vial when
    received was smashed and blood had leaked out."    The certificate
    of analysis produced by the Division of Forensic Science
    regarding the other blood sample indicated that appellant's blood
    alcohol content was 0.21 percent.     The trial judge admitted the
    certificate of analysis produced by the Division of Forensic
    Science into evidence and found appellant guilty of DUI.
    On appeal, appellant contends that because Valley Medical
    Laboratories was unable to test the second vial of blood due to
    the condition in which it arrived there, the Commonwealth's
    certificate of analysis regarding the other sample was
    inadmissible and the Commonwealth should have been foreclosed
    from prosecuting him for DUI.   When a blood test is conducted
    following an arrest for DUI, Code § 18.2-268.6 requires that the
    blood taken from the accused
    be divided between two containers provided by
    the Division [of Forensic Science], and the
    containers shall be sealed to prevent
    tampering with the vial. The arresting or
    accompanying officer shall take possession of
    the two containers as soon as the vials are
    placed in such containers and sealed, and
    shall promptly transport or mail one of the
    containers to the Division. Immediately
    after taking possession of the second
    container, the officer shall give to the
    accused a form provided by the Division which
    sets forth the procedure to obtain an
    -3-
    independent analysis of the blood in the
    second container, and a list of the names and
    addresses of laboratories approved by the
    Division. The form shall contain a space for
    the accused or his counsel to direct the
    officer possessing the second container to
    forward it to an approved laboratory for
    analysis, if desired. If the accused directs
    the officer in writing on the form to forward
    the second container to an approved
    laboratory of the accused's choice, the
    officer shall do so.
    *   *    *    *     *   *    *
    The contents of the second container
    shall be transmitted, tested and admitted in
    evidence in the same manner and in accordance
    with procedures established for the sample
    sent to the Division . . . .
    Code § 18.2-268.11 provides:
    The steps set forth in §§ 18.2-268.2
    through 18.2-268.9 relating to taking,
    handling, identifying, and disposing of blood
    or breath samples are procedural and not
    substantive. Substantial compliance shall be
    sufficient. Failure to comply with any steps
    or portions thereof, or a variance in the
    results of the two blood tests shall not of
    itself be grounds for finding the defendant
    not guilty, but shall go to the weight of the
    evidence and shall be considered with all the
    evidence in the case; however, the defendant
    shall have the right to introduce evidence on
    his own behalf to show noncompliance with the
    aforesaid procedures or any part thereof, and
    that as a result his rights were prejudiced.
    "'[W]hen the Commonwealth cannot prove that it substantially
    complied with the statutory procedures referred to in Code
    [§ 18.2-268.11], the Commonwealth is foreclosed from
    prosecution.'"   Shoemaker v. Commonwealth, 
    18 Va. App. 61
    , 65,
    
    441 S.E.2d 354
    , 356 (1994) (quoting Kemp v. Commonwealth, 16 Va.
    -4-
    App. 360, 366, 
    429 S.E.2d 875
    , 879 (1993)).
    In Kemp, the Commonwealth neither accounted for the
    whereabouts of the defendant's blood sample that he had requested
    be sent to an independent laboratory, nor produced a certificate
    of analysis pertaining to that sample. We held that
    when an accused asks that his blood sample be
    sent to an independent laboratory for testing
    and an independent analysis is not available
    at trial, the Commonwealth has the burden to
    explain the absence of independent test
    results and show that it substantially
    complied with the steps relating to the
    taking, handling, identification, and
    disposition of defendant's blood and/or
    breath samples. The Commonwealth must prove
    that the unavailability of the independent
    test results is not due to unreasonable
    conduct by the Commonwealth or its agents.
    Kemp, 16 Va. App. at 365, 429 S.E.2d at 878.
    In Shoemaker, the arresting officer provided the defendant
    with an outdated list from which to choose a laboratory to
    conduct the independent analysis of his blood.   At the time of
    the defendant's arrest, the laboratory he selected to perform the
    independent analysis was no longer approved to perform the test.
    Consequently, the laboratory returned the sample of appellant's
    blood unopened and marked "refused."   The Commonwealth took no
    steps to resubmit the sample to another laboratory or to
    otherwise cure the problem caused by the officer having provided
    the defendant with an outdated list of laboratories.   See
    Shoemaker, 18 Va. App. at 62, 
    441 S.E.2d at 355
    .   Upon these
    facts, we concluded that the evidence failed to show that the
    -5-
    Commonwealth had substantially complied with the statutory
    requirements.    See id. at 65, 
    441 S.E.2d at 356
    .
    In this case, the Commonwealth produced uncontradicted
    evidence that the vials were in good condition when received by
    Officer Jackson-Clark.    The boxes containing the vials were
    maintained in a refrigerator by Johnson.    The boxes remained
    sealed and were not leaking when Johnson mailed them to the
    respective laboratories, as Code § 18.2-268.6 specifically
    permits. 1   Thus, there was no indication that the boxes were
    mishandled prior to mailing or that the Commonwealth deviated
    from the procedures mandated by Code § 18.2-268.6.
    The statutes relating to the taking and handling of blood
    samples do not provide that the postal workers involved in
    transmitting blood samples to the laboratories necessarily become
    agents of the Commonwealth, for whose unreasonable conduct the
    prosecution must account.    We will not presume the existence of
    such an agency relationship.    See State Farm Mut. Auto. Ins. Co.
    v. Weisman, 
    247 Va. 199
    , 203, 
    441 S.E.2d 16
    , 19 (1994).    In fact,
    after depositing the boxes in good condition in the mail, the
    Commonwealth had no further control over the manner of their
    delivery to the laboratories.    Although postal service clerks
    generally are presumed to have properly discharged their official
    duties, see Robertson v. Commonwealth, 
    12 Va. App. 854
    , 856-57,
    1
    Johnson could not have viewed the vials and ensured their
    good condition without unsealing the boxes and thereby violating
    the procedure set forth in Code § 18.2-268.6.
    -6-
    
    406 S.E.2d 417
    , 418-19 (1991), the condition in which the vial
    arrived at Valley Medical Laboratories tended to rebut that
    presumption of regularity in this instance.
    The Commonwealth's evidence demonstrated that it
    substantially complied with the statutory procedures relating to
    the taking and handling of blood samples, and sufficiently
    explained the unavailability of the independent blood test.
    Therefore, the trial judge did not err in admitting the
    Commonwealth's certificate of analysis and in finding appellant
    guilty of DUI.
    Affirmed.
    -7-