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

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
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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
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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.
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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
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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.
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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.
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