# Stevens v. Commonwealth

> Court of Appeals of Virginia · August 9, 2005 · 46 Va. App. 234

URL: https://www.frixlaw.com/law-library/cases/1063435

## Case

- **Full name:** David Alan STEVENS v. COMMONWEALTH of Virginia
- **Court:** Court of Appeals of Virginia
- **Decided:** August 9, 2005
- **Citations:** 46 Va. App. 234; 616 S.E.2d 754; 2005 Va. App. LEXIS 407
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Fitzpatrick, Benton, Elder, Frank, Humphreys, Clements, Felton, Kelsey, McClanahan
- **Cited by:** 68 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1063435

## How later opinions describe it (automated extraction)

- noting that “blood test results are not required to prove intoxication for prosecution under clauses (ii), (iii) or (iv) of Code § 18.2-266”

## Opinion text

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Elder, Frank, Humphreys, Clements, Felton,
Kelsey and McClanahan
Argued at Richmond, Virginia

DAVID ALAN STEVENS
OPINION BY
v. Record No. 1415-03-4 JUDGE ELIZABETH A. McCLANAHAN
AUGUST 9, 2005
COMMONWEALTH OF VIRGINIA

UPON REHEARING EN BANC

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Burke F. McCahill, Judge

Bonnie H. Hoffman, Deputy Public Defender (Office of the Public
Defender, on briefs), for appellant.

Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.

By published opinion dated October 19, 2004, a divided panel of this Court affirmed the

judgment of the trial court. Stevens v. Commonwealth, 44 Va. App. 122, 603 S.E.2d 642 (2004).

We stayed the mandate of that decision and granted a rehearing en banc, 44 Va. App. 414, 605

S.E.2d 329 (2004). Upon rehearing en banc, it is ordered that the stay of the mandate is lifted,

and the judgment of the trial court is affirmed.

David Alan Stevens appeals his conviction for aggravated involuntary manslaughter in

violation of Code § 18.2-36.1. He contends that the trial court erred by: (1) failing to foreclose

prosecution of the aggravated involuntary manslaughter charge on the ground that the

Commonwealth did not comply with the procedural requirements of a driving under the

influence (DUI) charge; (2) failing to exclude a hospital toxicology report based on insufficient

proof of reliability; (3) failing to instruct the jury on criminal negligence; and (4) finding the
evidence sufficient to prove he was guilty of aggravated involuntary manslaughter. For the

reasons that follow, we affirm the trial court.

I. BACKGROUND

On appeal, we review the evidence in the light most favorable to the Commonwealth.

Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). That principle

requires us to “discard the evidence of the accused in conflict with that of the Commonwealth,

and regard as true all the credible evidence favorable to the Commonwealth and all fair

inferences that may be drawn therefrom.” Kelly v. Commonwealth, 41 Va. App. 250, 254, 584

S.E.2d 444, 446 (2003) (en banc) (citations omitted).

So viewed, on June 29, 2002, appellant struck an automobile driven by Barry Childers

while Childers was turning left at an intersection. As a result, Heather Watson, a passenger in

Childers’ vehicle, was killed. Volunteer rescue workers treated appellant at the scene, and

appellant told one of them that he had come from a bar and had been drinking “lots and lots and

lots.” Appellant was transported to a local hospital emergency room. Appellant’s hospital

admission records show that appellant stated he had consumed “between 12 – 24 beers” and

“[more than] 18 beers” prior to the accident.

After the accident, the Loudoun County Sheriff’s Office dispatched Deputy Chris

Coderre to the hospital to arrest appellant. Appellant was waiting to undergo a Computed Axial

Tomography scan when Coderre located him. Coderre said he could clearly smell alcohol in the

room that appellant was in, the smell being especially obvious in the hospital’s sterile

environment. After the scan, Coderre spoke to appellant and informed him that he was under

arrest for DUI. Coderre read the implied consent law to appellant,1 explained the procedure, and

1
Code § 18.2-268.2, the implied consent law, provides that any person operating a motor
vehicle on a highway in the Commonwealth is deemed, as a condition of operating the vehicle, to
-2-
asked him to submit to a blood test, to which appellant agreed. Coderre watched a hospital lab

technician draw two vials of appellant’s blood, then seal, package, tape, and initial them. Once

the blood was drawn, Coderre informed appellant of his right to an independent analysis of the

blood sample, asked him if he wished to have it done, and, if so, to sign the form authorizing the

test. Coderre offered appellant the form and his pen, upon which appellant stated, “I’m too

f---ed up. I can’t sign sh--.” Coderre kept the form with a vial of appellant’s blood and took it

with him when he left the hospital. The form and blood sample remained locked in the trunk of

Coderre’s police cruiser until the following Monday when Coderre submitted it to the

Department of Forensic Sciences for testing. An analysis of this blood sample showed

appellant’s blood alcohol content was .21. The hospital’s blood toxicology report indicated that

appellant’s blood alcohol content was .24 or .25. On July 1, 2002, the Commonwealth charged

appellant with driving under the influence, pursuant to Code § 18.2-266, and aggravated

involuntary manslaughter, pursuant to Code § 18.2-36.1.

At a pretrial hearing, the trial court suppressed the implied consent law blood sample

analysis and precluded the Commonwealth from using the presumption of intoxication pursuant

to Code § 18.2-269. The trial court based its ruling on a finding that the Commonwealth had

failed to arrest appellant within the statutorily mandated period after the incident as required by

Code § 18.2-268.2.2 The court also ruled that appellant had not properly been provided the form

requesting independent analysis of the blood sample. The court therefore dismissed prosecution

of charges under Code § 18.2-266 (DUI) but allowed the Commonwealth to proceed with

have consented to have samples of his or her blood, breath, or both blood and breath, taken and
tested for purposes of determining its alcohol and/or drug content.
2
At the time of the incident, pursuant to Code § 18.2-268.2, consent was implied if the
arrest was made within two hours of the alleged offense. In 2002, the General Assembly
amended that statute to allow implied consent if the arrest was made within three hours of the
alleged offense.
-3-
prosecution under Code § 18.2-36.1 (aggravated involuntary manslaughter). After a jury trial,

appellant was convicted of aggravated involuntary manslaughter and sentenced to fifteen years in

prison.

II. ANALYSIS

A. Implied Consent Law Procedural Violations Do Not Require Dismissal
of an Aggravated Involuntary Manslaughter Charge

An aggravated involuntary manslaughter conviction under Code § 18.2-36.1 requires a

finding that the defendant was driving under the influence of either alcohol or drugs or a

combination of alcohol and drugs, as specified in clauses (ii), (iii) or (iv) of Code § 18.2-266.

The implied consent law governs procedural steps for conducting breath and blood tests for the

prosecution of DUI charges.

Appellant argues that a prosecution for aggravated involuntary manslaughter is inherently

a prosecution for DUI; thus, the implied consent law procedures apply.3 At the time of

appellant’s arrest, these procedures required the arresting officer to give the accused a form

indicating how he could obtain an independent analysis of the blood sample drawn.4 Appellant

3
Based on the holding in Hall v. Commonwealth, 32 Va. App. 616, 529 S.E.2d 829
(2000) (en banc), appellant contends that the trial court should have dismissed the aggravated
manslaughter charge under Code § 18.2-36.1 on the ground that the Commonwealth did not
comply with Code § 18.2-268.6. While it is true that Hall stands for the proposition that a
prosecution under Code § 18.2-36.1 is necessarily a prosecution under Code § 18.2-266, the
application of the rule in Hall is much narrower than appellant argues. Id. at 627, 529 S.E.2d at
835. The holding in Hall is limited to cases where inadmissible evidence is used to prove a
violation of Code § 18.2-266 as a predicate to the involuntary manslaughter charge. Id. In Hall,
the Court dismissed the involuntary manslaughter charge because the preliminary breath test
analysis was admitted to prove a violation of Code § 18.2-266, in direct contravention of Code
§ 18.2-267(E), which provides that such results “shall not be admitted into evidence . . . .” Id.
That is not the case here.
4
In 2003, the General Assembly amended Code § 18.2-268.6 to eliminate the provision
requiring the arresting officer to give the accused a form setting forth the procedures for
obtaining an independent analysis of the blood sample. See Va. Acts, chs. 933, 936. Stevens
was charged before the amendment took effect, and, therefore, the amendment does not apply in
this case.
-4-
argues that because he did not receive the independent analysis form, the trial court should have

dismissed the aggravated manslaughter charge.5

We disagree. Even if failure to comply with the implied consent law procedural

requirements does not forbid a prosecution for aggravated manslaughter, blood test results are

not required for a conviction under either Code §§ 18.2-266 or 18.2-36.1.6

Neither Code § 18.2-268.6 nor any of the other implied consent law statutes refer to Code

§ 18.2-36.1. Code §§ 18.2-268.2, -268.3, -268.4, -268.5, -268.8, -268.9 and -268.10 include

specific language that they apply to violations of Code §§ 18.2-266 or -266.1 or a similar

ordinance,7 but none of those code sections mention Code § 18.2-36.1.8 Only Code § 18.2-268.3

5
Appellant argues that Artis v. City of Suffolk, 19 Va. App. 168, 450 S.E.2d 165 (1994),
and Shoemaker v. Commonwealth, 18 Va. App. 61, 441 S.E.2d 354 (1994), support his
contention that the officer’s failure to ensure that appellant received the form is fatal to his
conviction. Artis held that merely showing a form to the accused is insufficient to comply with
the requirement that the form be given to the accused and, therefore, requires dismissal of the
DUI charge. Artis, 19 Va. App. at 170-71, 450 S.E.2d at 166-67. Shoemaker held that failure to
substantially comply with Code § 18.2-268.6 required dismissal of the DUI charge on the
rationale that independent test results could have provided the accused with exculpatory
evidence. Shoemaker, 18 Va. App. at 64, 441 S.E.2d at 356. However, in both of those cases,
the defendant was charged with DUI under Code § 18.2-266, not with aggravated involuntary
manslaughter under Code § 18.2-36.1, the statute at issue in the instant case. While failure to
substantially comply with the procedural requirements for testing blood and breath samples
under the implied consent law may bar the Commonwealth from a prosecution under the DUI
statute (Code § 18.2-266) and may bar the Commonwealth from using those test results, that
failure does not bar prosecution for aggravated involuntary manslaughter under Code
§ 18.2-36.1.
6
Given our holding, we need not address the Commonwealth’s alternative arguments:
that there was no violation of the implied consent law; that only substantive violations of the
implied consent law are relevant for the purposes of applying that statute; or, even if the
violations are substantive, the proper remedy is not to dismiss the charge, but to rebut or suppress
the evidence.
7
We note that the legislature used the word “ordinance” and not “statute,” removing any
argument that Code § 18.2-36.1 is included under that language.
8
It is not necessary for the other implied consent law statutes to recite the statutes to
which they apply because they are either definitional (Code § 18.2-268.1), or they refer back to
other provisions of the implied consent law (Code §§ 18.2-268.6, 18.2-268.7 and 18.2-268.11).
-5-
applies its provisions to an additional statute, specifically, Code § 18.2-51.4, maiming as a result

of driving while intoxicated. Additionally, Code § 18.2-51.4 specifically provides that the

implied consent law provisions apply upon arrest for a violation of that code section.9 Had the

General Assembly intended to require the implied consent law procedures and its related

statutory provisions for a prosecution under Code § 18.2-36.1, it would have specifically

provided so; however, it did not. See Jordan v. South Boston, 138 Va. 838, 844-45, 122 S.E.

265, 267 (1924) (“Courts cannot read into a statute something that is not within the manifest

intention of the legislature as gathered from the statute itself. To depart from the meaning

expressed by the words is to alter the statute, to legislate and not to interpret.” (internal

quotations and citation omitted)). The omission, in this context, makes it apparent that the

legislature did not require those procedural hurdles.

Furthermore, blood test results are not required to prove intoxication for prosecution

under clauses (ii), (iii) or (iv) of Code § 18.2-266, and, by extension, therefore, are not required

for prosecution under Code § 18.2-36.1. See Oliver v. Commonwealth, 40 Va. App. 20, 24, 577

S.E.2d 514, 516 (2003) (“Test results from a breath or blood test are not necessary or required to

prove driving under the influence of alcohol or drugs.”). Only clause (i) of Code § 18.2-266, the

per se statute predicating guilt on blood alcohol content alone, requires blood test results. Code

§ 18.2-36.1 does not require that the Commonwealth establish a violation of clause (i) of Code

§ 18.2-266; it only requires a violation of clauses (ii), (iii) or (iv). If the General Assembly

intended to require a blood test for prosecution for involuntary manslaughter, it would have tied

In 2004, the General Assembly added Code § 18.2-272 to most of the statutes cited above; see
Va. Acts, ch. 1013.
9
It is important to note that Code § 18.2-51.4 is the equivalent of Code § 18.2-36.1(B),
except that it applies in cases of “serious bodily injury of another person resulting in permanent
and significant physical impairment” instead of death and provides for a different felony
classification.
-6-
the involuntary manslaughter statute to clause (i) and not just clauses (ii), (iii), and (iv). Thus,

“‘the result of a [blood] analysis is but auxiliary proof which may tend to corroborate evidence of

the objective symptoms [of being under the influence of alcohol].’” Thurston v. Lynchburg, 15

Va. App. 475, 483, 424 S.E.2d 701, 705-06 (1992) (quoting Brooks v. City of Newport News,

224 Va. 311, 315-16, 295 S.E.2d 801, 804 (1982)). In this case, there was sufficient evidence of

objective symptoms that would allow a fact finder to conclude that appellant was under the

influence of alcohol: (1) appellant admitted to consuming twelve to twenty-four beers;

(2) Coderre and two other witnesses smelled a “strong odor” of alcohol when in the appellant’s

presence; (3) when asked if he had been drinking, appellant answered yes, “lots and lots and

lots”; and, (4) at the hospital, appellant stated that he was “too f---ed up” and couldn’t sign

anything. Such evidence is enough to support a finding of intoxication, and, therefore, a

violation of Code § 18.2-266 (ii), (iii) or (iv), without the blood test.

B. The Court Did Not Err in Admitting the Hospital Toxicology Report

Appellant argues that, because the Commonwealth failed to affirmatively show a reliable

foundation for the hospital toxicology report, it was error for the court to admit it into evidence.

We disagree.

Appellant concedes that Code § 19.2-187.0210 addresses the hearsay nature of the

hospital records, but contends that it does not overcome or eliminate the requirements that

admission of scientific evidence must be based on a proper foundation. However, “[w]hether the

foundation is sufficient is a question within the sound discretion of the trial judge. If the judge

finds the foundation sufficient, the credibility of the witnesses and the weight to be accorded the

10
Code § 19.2-187.02 states that “the written results of blood alcohol tests conducted
upon persons receiving medical treatment in a hospital emergency room are admissible in
evidence as a business records exception to the hearsay rule in prosecutions” for violations of
several named code provisions, including Code § 18.2-36.1, involuntary manslaughter resulting
from driving while intoxicated.
-7-
evidence are matters within the province of the [fact finder].” Essex v. Commonwealth, 228 Va.

273, 285, 322 S.E.2d 216, 223 (1984). In this case, the trial court did not abuse its discretion in

admitting the hospital toxicology report.

Appellant also contends that in spite of the statute allowing admission of hospital blood

tests, those tests must also meet the requirements of Code § 18.2-268.5, which relate to the

handling of blood samples taken pursuant to the implied consent law. Blood tests performed by

medical personnel in a hospital emergency room are not subject to the requirements of Code

§ 18.2-268.5. That statute applies only to blood drawn under the implied consent law. The

statute begins, “[f]or purposes of this article . . . ,” which clearly and strictly limits its application

only to DUI prosecutions.

C. The Court Did Not Err in Denying Appellant’s Proposed Jury Instructions

Appellant argues that the trial court erred by denying three of his proposed jury

instructions, “W,” “Y,” and “Z.” He contends that the denial of these instructions prevented him

from presenting his theory of the case to the jury. Instruction “W” describes three degrees of

negligence: ordinary, willful, and criminal. Instructions “Y” and “Z” raise the issue of whether

Watson’s death was directly caused by appellant’s actions.

“A reviewing court’s responsibility in reviewing jury instructions is ‘to see that the law

has been clearly stated and that the instructions cover all issues which the evidence fairly

raises.’” Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (quoting

Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). When reviewing a trial

judge’s decision refusing a proffered jury instruction, “‘[t]he appropriate standard of review

requires that we view the evidence with respect to the refused instruction in the light most

favorable to [the proponent of the instruction].’” Hartigan v. Commonwealth, 31 Va. App. 243,

-8-
257, 522 S.E.2d 406, 412 (1999) (quoting Boone v. Commonwealth, 14 Va. App. 130, 131, 415

S.E.2d 250, 251 (1992)).

The jury instructions approved by the trial court in this case are the same as those upheld

by this Court in Hall, 32 Va. App. 616, 529 S.E.2d 829. In Hall, we noted that these instructions

“substantially tracked the language of Code § 18.2-36.1 and the Virginia Model Jury

Instructions” and that they “adequately stated the elements of the offense.” Id. at 635, 529

S.E.2d at 839. As in Hall, the trial court was justified in approving an instruction that clearly and

simply stated the elements of the crime and the findings that were necessary for a conviction.

The trial court did not abuse its discretion in refusing to admit instruction “W,” as it

would not have clarified any element of the law and could have confused the jury by introducing

additional issues not present in the law under which appellant was prosecuted. Instructions “Y”

and “Z” were properly refused as another instruction already dealt with the issues of causation.

These additional instructions would have been needlessly redundant. “[I]t is not desirable to

multiply instructions. Moreover, any instruction that is given should relate to the specific

evidence in the case and should not incorrectly state the law or mislead the jury. . . . [T]he trial

judge may properly refuse any instructions that are misleading or redundant.” Diffendal v.

Commonwealth, 8 Va. App. 417, 423, 382 S.E.2d 24, 26-27 (1989) (internal quotations and

citations omitted). We hold that the trial court did not abuse its discretion in deciding to refuse

the instructions.

D. The Evidence Was Sufficient As a Matter of Law

When the sufficiency of the evidence is challenged on appeal, “‘we presume the

judgment of the trial court to be correct’ and reverse only if the trial court’s decision is ‘plainly

wrong or without evidence to support it.’” Kelly, 41 Va. App. at 257, 584 S.E.2d at 447 (quoting

Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002)); see also McGee

-9-
v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc). This means

the jury’s verdict cannot be overturned on appeal unless no “‘rational trier of fact’” could have

come to the conclusion it did. Kelly, 41 Va. App. at 257, 584 S.E.2d at 447 (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)); see also Seaton v. Commonwealth, 42 Va. App. 739, 746,

595 S.E.2d 9, 13 (2004); Pease v. Commonwealth, 39 Va. App. 342, 355, 573 S.E.2d 272, 278

(2002) (en banc) (“We let the decision stand unless we conclude no rational juror could have

reached that decision.”), aff’d, 226 Va. 397, 588 S.E.2d 149 (2003). A reviewing court does not

“ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable

doubt.” Jackson, 443 U.S. at 318-19 (emphasis in original and citation omitted). We must

instead ask whether “any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Kelly, 41 Va. App. at 257, 584 S.E.2d at 447 (quoting

Jackson, 443 U.S. at 319) (emphasis in original and internal quotations omitted); see also

Hoambrecker v. City of Lynchburg, 13 Va. App. 511, 514, 412 S.E.2d 729, 731 (1992). “‘This

familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts

in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts.”’ Kelly, 41 Va. App. at 257-58, 584 S.E.2d at 447 (quoting Jackson, 443 U.S. at

319).

Appellant argues that the evidence presented at trial was insufficient to prove: (1) that he

was intoxicated; (2) that he caused Watson’s death; and (3) that his conduct was gross, wanton,

and culpable. There is sufficient evidence in the record on each of these elements to support the

jury’s decision to convict.

Appellant first argues that the Commonwealth did not prove he was intoxicated. On the

contrary, the hospital toxicology report revealed that appellant’s blood alcohol content was .24 or

.25, approximately three times the legal limit in Virginia. The Commonwealth presented expert

- 10 -
testimony on the mental and physical effects that normally accompany a blood alcohol content

greater than .20. There was evidence that appellant asked after the accident, “What did I hit?,”

admitted he did not remember the accident, that he consumed between twelve and twenty-four

beers, and that after the accident he stated that he was “too f---ed up” and couldn’t sign anything.

Witnesses also testified that appellant was mumbling, disoriented, and had a strong odor of

alcohol about his person. Finally, the Commonwealth presented evidence that there was a lack

of skid marks at the scene of the accident, from which the jury could conclude that appellant’s

driving behavior at the time of the accident was wanton and reckless and was affected by his

intoxicated state. Thus, the record contains sufficient evidence for the jury to conclude that

appellant was intoxicated.

Appellant next argues that the evidence was insufficient to prove that he caused Watson’s

death. He contends that the Commonwealth only proved that he struck the vehicle Watson was

riding in and that evidence was insufficient to prove that her death was caused by his

intoxication. Appellant claims that Childers’ testimony was inconsistent and that Childers was at

fault because he should have seen and yielded to appellant’s vehicle. The Commonwealth

presented evidence that Childers’ vehicle had the right-of-way and that appellant ran a red light.

Childers testified that he had received a green arrow before he began turning his vehicle. The

Commonwealth also presented an expert in traffic signals who testified that if Childers received

a green arrow, appellant would have faced a red light at the time of the accident. Appellant

presented no evidence that would prevent any reasonable juror from believing the testimony of

Childers or the expert witness. The lack of skid marks – indicating appellant’s failure to stop or

slow down before the impact – could also lead the jury to conclude that appellant’s failure to

notice the other car before striking it caused the accident. Therefore, the record contains

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sufficient evidence to allow the jury to conclude that appellant’s driving while intoxicated caused

Watson’s death.

Appellant also argues with regard to causation that Childers’ testimony is inconsistent

with a finding that he had the right-of-way. Appellant contends that because Childers did not see

appellant’s car before entering the intersection, he could not have been attentive to the traffic

signal. However,

All of the authorities agree that contributory negligence has no
place in a case of involuntary manslaughter [and] if the criminal
negligence of the [accused] is found to be the cause of the death,
[he] is criminally responsible, whether the decedent’s failure to use
due care contributed to the injury or not. Bell v. Commonwealth,
170 Va. 597, 616, 195 S.E. 675, 683 (1938).

Only if the conduct of the deceased amounts to an independent,
intervening act alone causing the fatal injury can the accused be
exonerated from liability for his or her criminal negligence. Mayo
v. Commonwealth, 218 Va. 644, 647, 238 S.E.2d 831, 833 (1977).
In such case, the conduct of the accused becomes a remote cause.
Delawder v. Commonwealth, 214 Va. 55, 57, 196 S.E.2d 913, 915
(1973).

Hubbard v. Commonwealth, 243 Va. 1, 14, 413 S.E.2d 875, 882 (1992). Therefore, the conduct

of another party plays no part in the case, unless that conduct is proven to be an independent,

intervening cause, rendering the defendant’s negligence so remote it ceases to be a proximate

cause of the accident. Appellant did not prove such in this case.

Finally, appellant argues that the evidence was insufficient for the jury to find him guilty

of gross, wanton, and culpable conduct. Appellant relies on Jetton v. Commonwealth, 2

Va. App. 557, 561, 347 S.E.2d 141, 144 (1986), in which this Court held that in order to find

gross, wanton, and culpable conduct, multiple factors are required other than intoxication to

show such conduct. Appellant asserts that the only relevant conduct to be considered is that he

ran a red light. He contends that single act is so common an occurrence that it fails to rise to the

level of gross, wanton, and culpable conduct.
- 12 -
While aggravated involuntary manslaughter convictions often involve multiple acts

exhibiting gross, wanton, and culpable conduct, a single act is sufficient to establish such

conduct. In Hall, this Court upheld an aggravated involuntary manslaughter conviction upon

facts that are substantially similar to the instant case. Hall, 32 Va. App. at 616, 529 S.E.2d at

829. In that case, the appellant was convicted after his truck collided with a motorcycle, killing

the cyclist. Id. at 621, 529 S.E.2d at 832. In Hall, the only conduct attributed to the appellant

was having a blood alcohol content greater than .20 and running a red light. This Court ruled

that “[t]he Commonwealth’s evidence was competent, was not inherently incredible and was

sufficient to prove appellant drove his vehicle in a ‘gross, wanton and culpable’ manner.” Id. at

632, 529 S.E.2d at 837.

Neither intoxication nor running a red light alone may be sufficient to establish gross,

wanton, and culpable conduct. However, the combination of appellant’s extreme intoxication,

ignoring traffic signals and running a red light, striking a vehicle without slowing down or

braking and asking, “What did I hit?,” is sufficient evidence for a jury to find gross, wanton, and

culpable conduct.

Accordingly, the record clearly provides sufficient evidence for a jury to conclude that

appellant knowingly engaged in conduct “so gross, wanton and culpable as to show a reckless

disregard of human life,” which proximately caused the accident and resulted in Watson’s death.

III. CONCLUSION

We hold that the trial court did not err in permitting prosecution of the aggravated

involuntary manslaughter charge under Code § 18.2-36.1, admitting the hospital toxicology

report, or by refusing appellant’s proffered jury instructions. We also conclude that the record

- 13 -
includes sufficient evidence for a jury to convict appellant of aggravated involuntary

manslaughter. Therefore, we affirm the judgment of the trial court.

Affirmed.

- 14 -
Benton, J., dissenting.

The Commonwealth indicted Stevens for driving under the influence of alcohol in

violation of Code § 18.2-266 and for involuntary manslaughter. The latter offense is statutorily

defined, in part, as follows:

A. Any person who, as a result of driving under the influence in
violation of clause (ii), (iii), or (iv) of § 18.2-266 or any local
ordinance substantially similar thereto unintentionally causes the
death of another person, shall be guilty of involuntary
manslaughter.

B. If, in addition, the conduct of the defendant was so gross,
wanton and culpable as to show a reckless disregard for human
life, he shall be guilty of aggravated involuntary manslaughter, a
felony punishable by a term of imprisonment of not less than one
nor more than 20 years, one year of which shall be a mandatory
minimum term of imprisonment.

Code § 18.2-36.1. This prosecution and conviction under Code § 18.2-36.1 implicated only

Code § 18.2-266(ii) because no allegation or evidence concerned any substance other than

alcohol.

The trial judge found that the arresting officer failed to comply with the Virginia implied

consent law because he did not arrest Stevens within the statutorily mandated period following

the accident, see Code § 18.2-268.2, and because he failed to give Stevens a form to request an

independent analysis of his blood, see Code § 18.2-268.6. Based upon his findings that the

officer violated Code § 18.2-268.6 of the implied consent law and that the conduct of the

arresting officer did not constitute substantial compliance with the provisions of Code

§ 18.2-268.6, the trial judge dismissed the Commonwealth’s prosecution of Stevens for violating

Code § 18.2-266. In so ruling, the trial judge relied upon our decisions in Artis v. City of

Suffolk, 19 Va. App. 168, 450 S.E.2d 165 (1994) (reversing the conviction for failure to provide

the accused with a form to make election for independent blood analysis, which “negates the

possibility of ‘substantial compliance’”), and Shoemaker v. Commonwealth, 18 Va. App. 61,
- 15 -
441 S.E.2d 354 (1994) (holding that the Commonwealth is foreclosed from prosecution upon

failure to comply with statutory procedures of Code § 18.2-268.6).

As we noted in Shoemaker, the Supreme Court has explained the necessity of “diligent

adherence” to the implied consent law as follows:

“The provisions of [Code § 18.2-268 et seq.] serve a salutary
purpose. A chemical analysis of one’s blood provides a
scientifically accurate method of determining whether a person is
intoxicated, removes the question from the field of speculation and
supplies the best evidence for that determination. It protects one
who has the odor of alcohol on his breath but has not been drinking
to excess, and one whose conduct may create the appearance of
intoxication when he is suffering from some physical condition
over which he has no control.”

18 Va. App. at 64-65, 441 S.E.2d at 356 (quoting Walton v. City of Roanoke, 204 Va. 678, 683,

133 S.E.2d 315, 319 (1963)). Thus, we held that dismissal of the prosecution under Code

§ 18.2-266 is the only adequate remedy for a violation of Code § 18.2-268.6. Shoemaker, 18

Va. App. at 64, 441 S.E.2d at 356. Suppression of the test results does not cure a violation of the

implied consent law because “the accused [is deprived] of a significant method of establishing

his innocence.” Breeden v. Commonwealth, 15 Va. App. 148, 150, 421 S.E.2d 674, 676 (1992).

We explained that a mere refusal to admit in evidence the Commonwealth’s test results would

not compensate for the deprivation of the statutory right in cases where the Commonwealth is

permitted to proceed at trial upon the arresting officer’s testimony. This is so because “the

independent test results could have been exculpatory.” Shoemaker, 18 Va. App. at 64, 441

S.E.2d at 356.

I would hold that the reasoning underlying these cases, as well as the express language of

Code § 18.2-36.1, mandate the conclusion that the trial judge erred in failing also to dismiss the

prosecution of Stevens for a violation of Code § 18.2-36.1. We have unequivocally drawn the

dependent connection between a prosecution under Code § 18.2-266 and a prosecution for

- 16 -
aggravated manslaughter under Code § 18.2-36.1. Our case law could not be clearer on this

point. We held in Hall v. Commonwealth, 32 Va. App. 616, 627, 529 S.E.2d 829, 835 (2000)

(en banc), that “[t]he manslaughter statute under which appellant was tried expressly references a

violation of Code § 18.2-266 as the predicate for the prosecution of aggravated manslaughter,”

and we further held that “[t]he Commonwealth can prove a violation of Code § 18.2-36.1 if and

only if it proves a violation of Code § 18.2-266.” In other words, “a prosecution for a violation

of Code § 18.2-36.1 is necessarily a prosecution under [Code] § 18.2-266.” Hall, 32 Va. App. at

616, 529 S.E.2d at 835 (emphasis added).

The express wording of the statute demonstrates that to convict an accused of involuntary

vehicular manslaughter, the Commonwealth must prove a violation of Code § 18.2-266 because

the manslaughter statute expressly provides that “[a]ny person who, as a result of driving under

the influence in violation of clause (ii), (iii), or (iv) of § 18.2-266 . . . unintentionally causes the

death of another person, shall be guilty of involuntary manslaughter.” Code § 18.2-36.1(A). If

there could be any doubt about the dependent connection between Code § 18.2-266 and Code

§ 18.2-36.1, the legislature eliminated that doubt. The legislative intent is clear: by enacting

“rebuttable presumptions” that arise in any prosecution for a violation of Code § 18.2-36.1 when

a blood analysis results from arrests under Code § 18.2-266, the General Assembly codified the

dependent connection. In pertinent part, Code § 18.2-269 provides as follows:

A. In any prosecution for a violation of § 18.2-36.1 or
§ 18.2-266(ii), or any similar ordinance, the amount of alcohol in
the blood of the accused at the time of the alleged offense as
indicated by a chemical analysis of a sample of the accused’s
blood or breath to determine the alcohol content of his blood in
accordance with the provisions of §§ 18.2-268.1 through
18.2-268.12 shall give rise to the following rebuttable
presumptions:

(1) If there was at that time 0.05 percent or less by weight by
volume of alcohol in the accused’s blood or 0.05 grams or less per
210 liters of the accused’s breath, it shall be presumed that the
- 17 -
accused was not under the influence of alcohol intoxicants at the
time of the alleged offense;

(2) If there was at that time in excess of 0.05 percent but less
than 0.08 percent by weight by volume of alcohol in the accused’s
blood or 0.05 grams but less than 0.08 grams per 210 liters of the
accused’s breath, such facts shall not give rise to any presumption
that the accused was or was not under the influence of alcohol
intoxicants at the time of the alleged offense, but such facts may be
considered with other competent evidence in determining the guilt
or innocence of the accused; or

(3) If there was at that time 0.08 percent or more by weight by
volume of alcohol in the accused’s blood or 0.08 grams or more
per 210 liters of the accused’s breath, it shall be presumed that the
accused was under the influence of alcohol intoxicants at the time
of the alleged offense.

Indeed, the connection between the statutes is amply demonstrated in this case by the

Commonwealth’s use, in this prosecution under Code § 18.2-36.1, of the blood analysis evidence

which was derived from blood drawn from Stevens under Code § 18.2-268.2. The

Commonwealth used the blood analysis evidence from blood drawn from Stevens under the

implied consent law. The Commonwealth’s expert testified that the analysis revealed Stevens’s

blood alcohol content was .12 by weight by volume, which would result in decreased steering

accuracy, decreased vision, decreased decision-making ability, and a general loss of

coordination. This evidence was critical in establishing that Stevens was intoxicated and that

Stevens’s conduct met the gross and wanton standard, elevating his crime to aggravated

involuntary manslaughter.

Stevens’s consent for the taking and testing of his blood was statutorily implied and

sanctioned because “he [was] arrested for violation of [Code] § 18.2-266.” Code § 18.2-268.2.

Furthermore, by denying Stevens’s motion to bar the prosecution under Code § 18.2-36.1, the

trial judge has permitted the Commonwealth to benefit from its violation of the implied consent

law. Because of the violation of the implied consent law following his arrest, Stevens had no

- 18 -
opportunity to obtain an independent analysis of his blood and, therefore, was precluded from

any opportunity that might have advantaged him under the rebuttable presumption statute of

Code § 18.2-269. See Shoemaker, 18 Va. App. at 64, 441 S.E.2d at 356 (holding that dismissal

was required because “the independent test results could have been exculpatory”). As we held in

Breeden, “[o]nce the Commonwealth has elected to have a driver take a blood or breath test

pursuant to Code § 18.2-268, the driver has a right to receive the benefits of the test.” 15

Va. App. at 150, 421 S.E.2d at 675.

For these reasons, I would reverse the conviction.

- 19 -
Tuesday 23rd

November, 2004.

David Alan Stevens, Appellant,

against Record No. 1415-03-4
Circuit Court No. CR15055

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner,
Frank, Humphreys, Clements, Felton, Kelsey and McClanahan

On November 2, 2004 came David Alan Stevens the appellant, by court-appointed counsel, and

filed a petition praying that the Court set aside the judgment rendered herein on October 19, 2004, and

grant a rehearing en banc thereof.

On consideration whereof, the petition for rehearing en banc is granted, the mandate entered

herein on October 19, 2004 is stayed pending the decision of the Court en banc, and the appeal is

reinstated on the docket of this Court.

The parties shall file briefs in compliance with Rule 5A:35. The appellant shall attach as an

addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the

Court in this matter. It is further ordered that the appellant shall file with the clerk of this Court twelve

additional copies of the appendix previously filed in this case.

A Copy,
Teste:
Cynthia L. McCoy, Clerk

By:
Deputy Clerk
COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and McClanahan
Argued by teleconference

DAVID ALAN STEVENS
OPINION BY
v. Record No. 1415-03-4 JUDGE ELIZABETH A. McCLANAHAN
OCTOBER 19, 2004
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Burke F. McCahill, Judge

Bonnie H. Hoffman, Deputy Public Defender (Office of the Public
Defender, on briefs), for appellant.

Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.

David Alan Stevens appeals his conviction for aggravated involuntary manslaughter in

violation of Code § 18.2-36.1. He contends that the trial court erred by: (1) failing to foreclose

prosecution of the aggravated involuntary manslaughter charge on the ground that the

Commonwealth did not comply with the procedural requirements of a driving under the

influence (DUI) charge; (2) failing to exclude a hospital toxicology report based on insufficient

proof of reliability; (3) failing to instruct the jury on criminal negligence; and (4) finding the

evidence sufficient to prove he was guilty of aggravated involuntary manslaughter. For the

reasons that follow, we affirm the trial court.

I. Background

On appeal, we review the evidence in the light most favorable to the Commonwealth.

Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). That principle

requires us to “‘discard the evidence of the accused in conflict with that of the Commonwealth,
and regard as true all the credible evidence favorable to the Commonwealth and all fair

inferences that may be drawn therefrom.’” Kelly v. Commonwealth, 41 Va. App. 250, 254, 584

S.E.2d 444, 446 (2003) (en banc) (quoting Watkins v. Commonwealth, 26 Va. App. 335, 348,

494 S.E.2d 859, 866 (1998)).

So viewed, on June 29, 2002, appellant struck an automobile driven by Barry Childers

while Childers was turning left at an intersection. As a result, Heather Watson, a passenger in

Childers’ vehicle, was killed. Volunteer rescue workers treated appellant at the scene, and

appellant told one of them that he had been drinking “lots and lots and lots,” and had come from

a bar. Appellant was transported to a local hospital emergency room. Appellant’s hospital

admission records show that appellant stated he had consumed “between 12 -- 24 beers” and

“[more than] 18 beers” prior to the accident.

After the accident, the Loudoun County Sheriff’s Office dispatched Deputy Chris

Coderre to the hospital to arrest appellant. Appellant was waiting to undergo a Computed Axial

Tomography scan when Coderre located him. Coderre said he could clearly smell alcohol in the

room that appellant was in, the smell being especially obvious in the hospital’s sterile

environment. After the scan, Coderre spoke to appellant and informed him that he was under

arrest for DUI. Coderre read the implied consent law to appellant,1 explained the procedure, and

asked him to submit to a blood test, to which appellant agreed. Coderre watched a hospital lab

technician draw two vials of appellant’s blood and seal, package, tape and initial them. Once the

blood was drawn, Coderre informed appellant of his right to an independent analysis of the blood

sample, asked him if he wished to have it done, and, if so, to sign the form authorizing the test.

1
Code § 18.2-268.2, the implied consent law, provides that any person operating a motor
vehicle on a highway in the Commonwealth is deemed, as a condition of operating the vehicle, to
have consented to have samples of his or her blood or breath taken and tested for purposes of
determining its alcohol and/or drug content.

-2-
Coderre offered appellant the form and his pen, upon which appellant stated, “I’m too f---ed up.

I can’t sign sh--.” Coderre kept the form with a vial of appellant’s blood and took it with him

when he left the hospital. The form and blood sample remained locked in the trunk of Coderre’s

police cruiser until the following Monday when Coderre submitted it to the Department of

Forensic Sciences for testing. An analysis of this blood sample showed appellant’s blood

alcohol content was .21. The hospital’s blood toxicology report indicated that appellant’s blood

alcohol content was .24 or .25. On July 1, 2002, the Commonwealth charged appellant with

driving under the influence, pursuant to Code § 18.2-266, and aggravated involuntary

manslaughter, pursuant to Code § 18.2-36.1.

At a pretrial hearing, the trial court suppressed the implied consent blood sample analysis

and precluded the Commonwealth from using the presumption of intoxication pursuant to Code

§ 18.2-269. The trial court based its ruling on a finding that the Commonwealth had failed to

arrest appellant within the statutorily mandated period after the incident as required by Code §

18.2-268.2.2 The court also ruled that appellant had not properly been provided the form

requesting independent analysis of the blood sample. The court therefore dismissed prosecution

of charges under Code § 18.2-266 (DUI) but allowed the Commonwealth to proceed with

prosecution under Code § 18.2-36.1 (aggravated involuntary manslaughter). After a jury trial,

appellant was convicted of aggravated involuntary manslaughter and sentenced to fifteen years in

prison.

2
At the time of the incident, pursuant to Code § 18.2-268.2, consent was implied if the
arrest was made within two hours of the alleged offense. In 2002, the General Assembly
amended that statute to allow implied consent if the arrest was made within three hours of the
alleged offense.
-3-
II. Analysis

A. The Trial Court Did Not Err by Allowing Prosecution under Code § 18.2-36.1

Appellant asserts, relying on Hall v. Commonwealth, 32 Va. App. 616, 627, 529 S.E.2d

829, 835 (2000), that a prosecution for aggravated involuntary manslaughter under Code

§ 18.2-36.1 is inherently a prosecution for DUI under Code § 18.2-266 and, therefore, the

Commonwealth must comply with all of the code provisions related to a prosecution for DUI. In

Hall, this Court stated,

The manslaughter statute under which appellant was tried
expressly references a violation of Code § 18.2-266 as the
predicate for prosecution of aggravated manslaughter. By the
express wording of the statute, a prosecution for a violation of
Code § 18.2-36.1 is necessarily a “prosecution under [Code]
§ 18.2-266.” Code § 18.2-267(E). The Commonwealth can prove
a violation of Code § 18.2-36.1 if and only if it proves a violation
of Code § 18.2-266. Thus, we hold that Code § 18.2-267(E)
applies to bar introduction of the results of the preliminary analysis
because a prosecution under Code § 18.2-36.1 includes as an
element of the offense proof of violation of Code § 18.2-266.

Hall, 32 Va. App. at 627, 529 S.E.2d at 835. Based on that holding, appellant contends that the

trial court should have dismissed the aggravated manslaughter charge under Code § 18.2-36.1 on

the ground that the Commonwealth did not comply with the procedural requirements of Code

§ 18.2-268.6, a provision concerning the transmission of blood samples.

An involuntary manslaughter conviction under Code § 18.2-36.1 requires a finding that

the defendant was driving under the influence of either alcohol or drugs or a combination of

alcohol and drugs, as specified in clauses (ii), (iii) and (iv) of Code § 18.2-266. Code of

Virginia, Title 18.2, Chapter 7, Article 2 governs the prosecution of driving a motor vehicle

while intoxicated, and includes Code § 18.2-266 as well as Code §§ 18.2-268.1 through -268.11,

which provide the steps for conducting breath and blood tests as related to the implied consent

law.

-4-
At the time of appellant’s arrest, Code § 18.2-268.2(B) provided that “[a]ny person so

arrested for a violation of [Code] § 18.2-266 (i) or (ii) or both, or [Code] § 18.2-266.1 . . . shall

submit to a breath test. If the breath test is unavailable or the person is physically unable to

submit to the breath test, a blood test shall be given.” Code § 18.2-268.6 required that when a

blood sample was drawn, the arresting officer must give the accused a form setting forth the

procedures for obtaining an independent analysis of the blood sample.3 Code § 18.2-268.11

provides that the steps for conducting the breath and blood tests are procedural and require only

substantial compliance. Appellant argues that the procedures are mandatory in an arrest under

Code § 18.2-36.1, that the accused must receive the independent analysis form, and because he

did not receive the form, the charge should have been dismissed. We disagree for the following

reasons.

While it is true that Hall stands for the proposition that a prosecution under Code

§ 18.2-36.1 is necessarily a prosecution under Code § 18.2-266, the application of the rule in

Hall is much narrower than appellant argues. In Hall, the Court held that preliminary analysis of

a breath test was inadmissible in an aggravated manslaughter prosecution under Code

§ 18.2-36.1, because the breath test results in that case were introduced to prove a violation of

Code § 18.2-266, which is not permissible under Code § 18.2-267(E). The holding in Hall is

limited to Code § 18.2-267, a statute that, among other provisions, prohibits admitting into

evidence preliminary test results that are used to determine whether an arrest should be made for

a violation of Code § 18.2-266. On the other hand, Code § 18.2-36.1 specifically predicates

prosecution under that statute upon a violation of either clause (ii), (iii) or (iv) of Code

3
In 2003, the General Assembly amended Code § 18.2-268.6 to eliminate the provision
requiring the arresting officer to give the accused a form setting forth the procedures for
obtaining an independent analysis of the blood sample. See Va. Acts, chs. 933, 936. Stevens
was charged before the amendment took effect, and, therefore, the amendment does not apply in
this case.
-5-
§ 18.2-266. In addition, the implied consent law and related statutes are invoked post-arrest,

when a violation of DUI has already been charged, and prescribe procedures for taking and

testing blood samples. In fact, as the trial court stated, and as we point out below, if the

Commonwealth had decided to charge appellant under “[Code] § 18.2-36.1 alone, he would not

be able to insist upon the independent analysis test afforded him under Code § 18.2-268.6.”

Results from a blood test are not necessary or required for a prosecution under Code

§ 18.2-266 (ii), (iii), or (iv), and, thus, are not required for prosecution under Code § 18.2-36.1.

See Oliver v. Commonwealth, 40 Va. App. 20, 24, 577 S.E.2d 514, 516 (2003) (“Test results

from a breath or blood test are not necessary or required to prove driving under the influence of

alcohol or drugs.”). Only clause (i) of Code § 18.2-266, “the per se statute predicating guilt on

blood alcohol content alone,” requires blood test results. Cutright v. Commonwealth, 43

Va. App. 593, 598, 601 S.E.2d 1, ___ (2004) (internal quotation marks and citation omitted).

Code § 18.2-36.1 does not require that the Commonwealth establish a violation of clause (i) of

Code § 18.2-266; it only requires that a violation of clauses (ii), (iii) or (iv) be shown. If the

General Assembly intended to require a blood test for prosecution for involuntary manslaughter,

it would have tied that involuntary manslaughter statute to clause (i) and not just clauses (ii), (iii)

and (iv). Thus, “‘the result of a [blood] analysis is but auxiliary proof which may tend to

corroborate evidence of the objective symptoms [of being under the influence of alcohol].’”

Thurston v. Lynchburg, 15 Va. App. 475, 483, 424 S.E.2d 701, 705-06 (1992) (quoting Brooks

v. City of Newport News, 224 Va. 311, 316, 295 S.E 2d 801, 804 (1982)). The jury properly

convicted appellant on all the other evidence showing he was intoxicated, including appellant’s

own admissions, without any blood test results.

The evidence in this case showed that appellant admitted to consuming twelve to

twenty-four beers and that Coderre and two other witnesses smelled a “strong odor” of alcohol

-6-
when in the appellant’s presence. When asked if he had been drinking, appellant answered yes,

“lots and lots and lots.” At the hospital, appellant stated that he was “too f---ed up” and couldn’t

sign anything. Such evidence, which we also discuss below, is enough to support a finding of

intoxication and therefore a violation under Code § 18.2-266 (ii) (iii) or (iv), without the blood

test. A blood test is not required to prove intoxication for prosecution under clauses (ii), (iii) or

(iv) of Code § 18.2-266, and, by extension, is, therefore, not required for prosecution under Code

§ 18.2-36.1.

Neither Code § 18.2-268.6, the implied consent law, nor any of the other statutes related

to the implied consent law refer to Code § 18.2-36.1. Code §§ 18.2-268.2, -268.3, -268.4,

-268.5, -268.8, -268.9 and -268.10 specifically state that they apply to violations of Code

§§ 18.2-266 or -266.1 or (except -268.9) “a similar ordinance,”4 but do not mention Code

§ 18.2-36.1.5 In addition to allowing prosecution for refusal to submit to a blood test under Code

§§ 18.2-266 and -266.1, Code § 18.2-268.3 also specifies that a prosecution for refusal to submit

to a blood test is available under a prosecution for maiming a person as a result of driving while

intoxicated pursuant to Code § 18.2-51.4. It is important to note that Code § 18.2-51.4 is the

equivalent of Code § 18.2-36.1(B), except that it applies in cases of “serious bodily injury of

another person resulting in permanent and significant physical impairment” instead of death.

Had the General Assembly intended to have the implied consent law and its related statutory

4
We note that the legislature used the word “ordinance” and not “statute,” removing any
argument that Code § 18.2-36.1 is included under that language. Code § 18.2-268.12 authorizes
counties, cities and towns to adopt ordinances that parallel the implied consent law and its related
provisions.
5
Code § 18.2-268.1 is a definitional statute, Code § 18.2-268.6 refers back to Code
§ 18.2-268.5, Code § 18.2-268.7 refers back to Code § 18.2-268.6, and Code § 18.2-268.11
refers back to Code §§ 18.2-268.2 to -268.9 and, therefore, do not need to recite the statutes to
which they apply. In 2004, the General Assembly added Code § 18.2-272 to most of the statutes
cited above; see Va. Acts, ch. 1013.

-7-
provisions apply to Code § 18.2-36.1, it would have specifically included it in the language of

those statutes; however, it did not. See Cummings v. Fulghum, 261 Va. 73, 77, 540 S.E.2d 494,

496 (2001) (“When the [plain] language in a statute is clear and unambiguous, we are bound by

the plain meaning of that language.”). Therefore, its omission makes it apparent that the

legislature intended to exclude it from those procedural hurdles.

Appellant argues, based on Artis v. City of Suffolk, 19 Va. App. 168, 450 S.E.2d 165

(1994), and Shoemaker v. Commonwealth, 18 Va. App. 61, 441 S.E.2d 354 (1994), that the

officer’s failure to ensure that appellant took delivery of the form is fatal to his conviction and,

thus, requires dismissal of the aggravated manslaughter charge. Artis held that merely showing a

form to the accused is insufficient to comply with the requirement that the form be given to the

accused and, therefore, requires dismissal of the DUI charge. Artis, 19 Va. App. at 170-71, 450

S.E.2d 166-67. Shoemaker held that failure to substantially comply with Code § 18.2-268.6

required dismissal of the DUI charge on the rationale that independent test results could have

provided the accused with exculpatory evidence. Shoemaker, 18 Va. App. at 64, 441 S.E.2d at

356. However, in both of those cases, the defendant was charged with DUI under Code

§ 18.2-266. Neither of those cases have anything to do with a prosecution for involuntary

manslaughter under Code § 18.2-36.1, the statute at issue in the instant case. 6

Appellant also relies on Hall. As discussed above, the Hall holding does not apply to the

facts of this case and, therefore, does not compel a dismissal of appellant’s aggravated

involuntary manslaughter charge. The remedy for a finding that there was not substantial

compliance with the provisions related to the implied consent law is dismissal of the DUI charge.

6
We also note that in this case, unlike in Artis, the appellant refused to take the form.
When Coderre offered the form to appellant he refused it saying, “I’m too f---ed up. I can’t sign
sh--.” In Artis, the Court specifically declined to apply its holding to such a situation, saving that
question for another day. Artis, 19 Va. App. at 171, 450 S.E.2d at 166.

-8-
That was the result in Artis and Shoemaker and that was the result in this case: appellant’s DUI

charge was dismissed. The trial court did not err in refusing to dismiss the aggravated

involuntary manslaughter charge.

B. The Court Did Not Err in Admitting the Hospital Toxicology Report

Appellant argues that, because the Commonwealth failed to affirmatively show a reliable

foundation for the hospital toxicology report, it was error for the court to admit it into evidence.

We disagree.

Appellant concedes that Code § 19.2-187.027 addresses the hearsay nature of the hospital

records, but that it does not overcome or eliminate the requirements for admission of scientific

evidence on a proper foundation. See Essex v. Commonwealth, 228 Va. 273, 322 S.E.2d 216

(1984). He contends that in spite of the statute allowing admission of hospital blood tests, those

tests must also meet the requirements of Code § 18.2-268.5, which relate to the handling of

blood samples taken pursuant to the implied consent law.

Blood tests performed by medical personnel in a hospital emergency room are not subject

to the requirements of Code § 18.2-268.5. That statute applies only to blood drawn under the

implied consent law. The statute begins, “[f]or purposes of this article . . . ,” which clearly and

strictly limits its application only to DUI prosecutions.

Code § 19.2-187.02 allows the records to be admitted into evidence under the business

records exception to the hearsay rule.

[The] business records exception to the hearsay rule . . . allows
introduction “into evidence of verified regular [business] entries
without requiring proof from the original observers or record
keepers.” Neeley v. Johnson, 215 Va. 565, 571, 211 S.E.2d 100,

7
Code § 19.2-187.02 states that “the written results of blood alcohol tests conducted
upon persons receiving medical treatment in a hospital emergency room are admissible in
evidence as a business records exception to the hearsay rule in prosecutions” for violations of
several named code provisions, including Code § 18.2-36.1, involuntary manslaughter resulting
from driving while intoxicated.
-9-
106 (1975). . . . “Admission of such evidence is conditioned . . . on
proof that the document comes from the proper custodian and that
it is a record kept in the ordinary course of business made
contemporaneously with the event by persons having the duty to
keep a true record.” “Automatic” Sprinkler [Corp. of America v.
Coley & Peterson, Inc., 219 Va. 781, 793, 250 S.E.2d 765, 773
(1979)] . . . .

Sparks v. Commonwealth, 24 Va. App. 279, 282, 482 S.E.2d 69, 70 (1997). The toxicology

report was shown to be a business record, recorded in the regular course of hospital business,

contemporaneously made, and authenticated by its authorized custodian. This is a sufficient

foundation for the admissibility of the hospital blood test as a business record. Therefore, the

trial court did not abuse its discretion in admitting the hospital toxicology report under the

“business records” exception to the hearsay rule, as evidence of the truth of its content.

C. The Court Did Not Err in Denying Appellant’s Proposed Jury Instructions

Appellant argues that the trial court erred by denying three of his proposed jury

instructions, “W,” “Y,” and “Z.” He contends that the denial of these instructions prevented him

from presenting his theory of the case to the jury. Instruction “W” describes three degrees of

negligence: ordinary, willful, and criminal. Instructions “Y” and “Z” raise the issue of whether

Watson’s death was directly caused by appellant’s actions.

“A reviewing court’s responsibility in reviewing jury instructions is ‘to see that the law

has been clearly stated and that the instructions cover all issues which the evidence fairly

raises.’” Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (quoting

Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). When reviewing a trial

judge’s decision refusing a proffered jury instruction, “‘the appropriate standard of review

requires that we view the evidence with respect to the refused instruction in the light most

favorable to [the proponent of the instruction].’” Hartigan v. Commonwealth, 31 Va. App. 243,

- 10 -
257, 522 S.E.2d 406, 412 (1999) (quoting Boone v. Commonwealth, 14 Va. App. 130, 131, 415

S.E.2d 250, 251 (1992)).

The jury instructions approved by the trial court in this case are the same as those upheld

by this Court in Hall. In Hall, we noted that these instructions “substantially tracked the

language of Code § 18.2-36.1 and the Virginia Model Jury Instructions” and that they

“adequately stated the elements of the offense.” Hall, 32 Va. App. at 635, 529 S.E.2d at 839. As

in Hall, the trial court was justified in approving an instruction that clearly and simply stated the

elements of the crime and the findings that were necessary for a conviction.

The trial court did not abuse its discretion in refusing to admit Instruction “W,” as it

would not have clarified any element of the law and could have confused the jury by introducing

additional issues not present in the law under which appellant was prosecuted. Instructions “Y”

and “Z” were properly refused as another instruction already dealt with the issues of causation.

These additional instructions would have been needlessly redundant. “It is not desirable to

multiply instructions. Moreover, any instruction that is given should relate to the specific

evidence in the case and should not incorrectly state the law or mislead the jury. . . . [T]he trial

judge may properly refuse any instructions that are misleading or redundant.” Diffendal v.

Commonwealth, 8 Va. App. 417, 423, 382 S.E.2d 24, 26-27 (1989) (internal quotations marks

and citations omitted). We hold that trial court did not abuse its discretion in deciding to refuse

the instructions.

D. The Evidence Was Sufficient As a Matter of Law

When the sufficiency of the evidence is challenged on appeal, we “‘presume the

judgment of the trial court to be correct’” and reverse only if the trial court’s decision is “‘plainly

wrong or without evidence to support it.’” Kelly, 41 Va. App. at 257, 584 S.E.2d at 447 (quoting

Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002)); see also McGee

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v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc). This means

the jury’s verdict cannot be overturned on appeal unless no “‘rational trier of fact’” could have

come to the conclusion it did. Kelly, 41 Va. App. at 257, 584 S.E.2d at 447 (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)); Seaton v. Commonwealth, 42 Va. App. 739, 746, 595

S.E.2d 9, 13 (2004); Pease v. Commonwealth, 39 Va. App. 342, 355, 573 S.E.2d 272, 278 (2002)

(en banc) (“We let the decision stand unless we conclude no rational juror could have reached

that decision.”), aff’d, 226 Va. 397, 588 S.E.2d 149 (2003). A reviewing court does not “ask

itself whether it believes that the evidence at the trial established guilt beyond a reasonable

doubt.” Jackson, 443 U.S. at 318-19 (emphasis in original and citation omitted). We must

instead ask whether “any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Kelly, 41 Va. App. at 257, 584 S.E.2d at 447 (quoting

Jackson, 443 U.S. at 319) (emphasis in original and internal quotation marks omitted)); see also

Hoambrecker v. City of Lynchburg, 13 Va. App. 511, 514, 412 S.E.2d 729, 731 (1992). “‘This

familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts

in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts.’” Kelly, 41 Va. App. at 257-58, 584 S.E.2d at 447 (quoting Jackson, 443 U.S. at

319).

Appellant argues that the evidence presented at trial was insufficient to prove: (1) that he

was intoxicated; (2) that he caused Watson’s death; and (3) that his conduct was gross, wanton

and culpable. There is sufficient evidence in the record on each of these elements to support the

jury’s decision to convict.

Appellant first argues that the Commonwealth did not prove he was intoxicated. On the

contrary, the hospital toxicology report revealed that appellant’s blood alcohol content was .24 or

.25, approximately three times the legal limit in Virginia. The Commonwealth presented expert

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testimony on the mental and physical effects that normally accompany a blood alcohol content

greater than .20. There was evidence that appellant asked after the accident, “What did I hit?,”

admitted he did not remember the accident, that he consumed between twelve and twenty-four

beers, and that after the accident he stated that he was “too f---ed up” and couldn’t sign anything.

Witnesses also testified that appellant was mumbling, disoriented, and had a strong odor of

alcohol about his person. Finally, the Commonwealth presented evidence that there was a lack

of skid marks at the scene of the accident, from which the jury could conclude that appellant’s

driving behavior at the time of the accident was out of the ordinary and was affected by his

intoxicated state. Thus, the record contains sufficient evidence for the jury to conclude that

appellant was intoxicated.

Appellant next argues that the evidence was insufficient to prove that he caused Watson’s

death. He contends that the Commonwealth only proved that he struck the vehicle Watson was

riding in, and that evidence was insufficient to prove that her death was caused by his

intoxication. Appellant claims that Childers’ testimony was inconsistent and that Childers was at

fault because he should have seen and yielded to appellant’s vehicle. The Commonwealth

presented evidence that Childers’ vehicle had the right-of-way and that appellant ran a red light.

Childers testified that he had received a green arrow before he began turning his vehicle. The

Commonwealth also presented an expert in traffic signals who testified that if Childers received

a green arrow, appellant would have faced a red light at the time of the accident. Appellant

presented no evidence that would prevent any reasonable juror from believing the testimony of

Childers or the expert witness. The lack of skid marks – indicating appellant’s failure to stop or

slow down before the impact – could also lead the jury to conclude that appellant’s failure to

notice the other car before striking it caused the accident. Therefore, the record contains

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sufficient evidence to allow the jury to conclude that appellant’s driving while intoxicated caused

Watson’s death.

Appellant also argues with regard to causation that Childers’ testimony is inconsistent

with a finding that he had the right-of-way. Appellant contends that because Childers did not see

appellant’s car before entering the intersection, he could not have been attentive to the traffic

signal. However,

All of the authorities agree contributory negligence has no place in
a case of involuntary manslaughter [and] if the criminal negligence
of the [accused] is found to be the cause of the death, [he] is
criminally responsible, whether the decedent’s failure to use due
care contributed to the injury or not.
Bell v. Commonwealth, 170 Va. 597, 616, 195 S.E.2d 675, 683
(1938).
Only if the conduct of the deceased amounts to an independent,
intervening act alone causing the fatal injury can the accused be
exonerated from liability for his or her criminal negligence. Mayo v.
Commonwealth, 218 Va. 644, 647, 238 S.E.2d 831, 833 (1977). In
such case, the conduct of the accused becomes a remote cause.
Delawander v. Commonwealth, 214 Va. 55, 57, 196 S.E.2d 913, 915
(1973).
Hubbard v. Commonwealth, 243 Va. 1, 14, 413 S.E.2d 875, 882 (1992). Therefore, the conduct

of another party plays no part in the case, unless that conduct is proven to be an independent,

intervening cause, rendering the defendant’s negligence so remote it ceases to be a proximate

cause of the accident. Appellant did not prove such in this case.

Finally, appellant argues that the evidence was insufficient for the jury to find him guilty

of gross, wanton and culpable conduct. Appellant relies on Jetton v. Commonwealth, 2 Va. App.

557, 561, 347 S.E.2d 141, 144 (1986), in which this Court stated that in order to find gross,

wanton and culpable conduct there must be multiple factors other than intoxication to show such

conduct. Appellant asserts that the only relevant conduct to be considered is that he ran a red

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light. He contends that single act is so common an occurrence that it fails to rise to the level of

gross, wanton and culpable conduct.

While involuntary manslaughter convictions often involve multiple acts exhibiting gross,

wanton and culpable conduct, a single act is sufficient to establish such conduct. In Hall, this

Court upheld an involuntary manslaughter conviction upon facts that are substantially similar to

the instant case. In Hall, the appellant was convicted after his truck collided with a motorcycle,

killing the cyclist. 32 Va. App. at 621, 529 S.E.2d at 832. In that case, the only conduct

attributed to the appellant was having a blood alcohol content greater than .20 and running a red

light. This Court ruled that “[t]he Commonwealth’s evidence was competent, was not inherently

incredible, and was sufficient to prove appellant drove his vehicle in a ‘gross, wanton and

culpable’ manner.” Id. at 632, 529 S.E.2d at 837.

Neither intoxication nor running a red light alone may be sufficient to establish gross,

wanton, and culpable conduct. However, the combination of appellant’s extreme intoxication,

ignoring traffic signals and running a red light, striking a vehicle without slowing down or

braking and asking, “What did I hit?,” is sufficient evidence for a jury to find gross, wanton and

culpable conduct.

Accordingly, the record clearly provides sufficient evidence for a jury to conclude that

appellant knowingly engaged in conduct “so gross, wanton and culpable as to show a reckless

disregard of human life,” which proximately caused the accident and resulted in Watson’s death.

III. Conclusion

We hold that the trial court did not err in permitting prosecution of the aggravated

involuntary manslaughter charge under Code § 18.2-36.1, admitting the hospital toxicology

report, or by refusing appellant’s proffered jury instructions. We also conclude that the record

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includes sufficient evidence for a jury to convict appellant of aggravated involuntary

manslaughter. Therefore, we affirm the judgment of the trial court.

Affirmed.

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Benton, J., dissenting.

The Commonwealth indicted Stevens for driving under the influence of alcohol in

violation of Code § 18.2-266 and for involuntary manslaughter. The latter offense is statutorily

defined, in part, as follows:

A. Any person who, as a result of driving under the influence in
violation of clause (ii), (iii), or (iv) of § 18.2-266 or any local
ordinance substantially similar thereto unintentionally causes the
death of another person, shall be guilty of involuntary
manslaughter.

B. If, in addition, the conduct of the defendant was so gross,
wanton and culpable as to show a reckless disregard for human
life, he shall be guilty of aggravated involuntary manslaughter, a
felony punishable by a term of imprisonment of not less than one
nor more than 20 years, one year of which shall be a mandatory
minimum term of imprisonment.

Code § 18.2-36.1. This prosecution and conviction under Code § 18.2-36.1 implicated only

Code § 18.2-266(ii) because no allegation or evidence concerned any substance other than

alcohol.

The trial judge found that the arresting officer failed to comply with the Virginia implied

consent law because he did not arrest Stevens within the statutorily mandated period following

the accident, see Code § 18.2-268.2, and because he failed to give Stevens a form to request an

independent analysis of his blood, see Code § 18.2-268.6. Based upon his findings that the

officer violated Code § 18.2-268.6 of the implied consent law and that the conduct of the

arresting officer did not constitute substantial compliance with the provisions of Code

§ 18.2-268.6, the trial judge dismissed the Commonwealth’s prosecution of Stevens for violating

Code § 18.2-266. In so ruling, the trial judge relied upon our decisions in Artis v. City of

Suffolk, 19 Va. App. 168, 450 S.E.2d 165 (1994), and Shoemaker v. Commonwealth, 18

Va. App. 61, 441 S.E.2d 354 (1994).

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As we noted in Shoemaker, the Supreme Court has explained the necessity of “diligent

adherence” to the implied consent law as follows:

“The provisions of [Code § 18.2-268 et seq.] serve a salutary
purpose. A chemical analysis of one’s blood provides a
scientifically accurate method of determining whether a person is
intoxicated, removes the question from the field of speculation and
supplies the best evidence for that determination. It protects one
who has the odor of alcohol on his breath but has not been drinking
to excess, and one whose conduct may create the appearance of
intoxication when he is suffering from some physical condition
over which he has no control.”

18 Va. App. at 64-65, 441 S.E.2d at 356 (quoting Walton v. City of Roanoke, 204 Va. 678, 683,

133 S.E.2d 315, 319 (1963)). Thus, we held that dismissal of the prosecution under Code

§ 18.2-266 is the only adequate remedy for a violation of Code § 18.2-268.6. Shoemaker, 18

Va. App. at 64, 441 S.E.2d at 356. See also Breeden v. Commonwealth, 15 Va. App. 148, 150,

421 S.E.2d 674, 676 (1992) (holding that suppression of the test results does not cure a violation

of the implied consent law that “deprives the accused of a significant method of establishing his

innocence”). We explained that a mere refusal to admit in evidence the Commonwealth’s test

results would not compensate for the deprivation of the statutory right in cases where the

Commonwealth is permitted to proceed at trial upon the arresting officer’s testimony. This is so

because “the independent test results could have been exculpatory.” Shoemaker, 18 Va. App. at

64, 441 S.E.2d at 356.

I would hold that the reasoning underlying these cases, as well as the express language of

Code § 18.2-36.1, mandate the conclusion that the trial judge erred in failing also to dismiss the

prosecution of Stevens for a violation of Code § 18.2-36.1. We have unequivocally drawn the

dependent connection between a prosecution under Code § 18.2-266 and a prosecution for

aggravated manslaughter under Code § 18.2-36.1. Our case law could not be clearer on this

point. We held in Hall v. Commonwealth, 32 Va. App. 616, 627, 529 S.E.2d 829, 835 (2000),

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that “[t]he manslaughter statute under which appellant was tried expressly references a violation

of Code § 18.2-266 as the predicate for the prosecution of aggravated manslaughter,” and we

further held that “[t]he Commonwealth can prove a violation of Code § 18.2-36.1 if and only if it

proves a violation of Code § 18.2-266.” In other words, “a prosecution for a violation of Code

§ 18.2-36.1 is necessarily a prosecution under [Code] § 18.2-266.” Hall, 32 Va. App. at 616,

529 S.E.2d at 835 (emphasis added).

The express wording of the statute demonstrates that to convict an accused of involuntary

vehicular manslaughter, the Commonwealth must prove a violation of Code § 18.2-266 because

the manslaughter statute expressly provides that “[a]ny person who, as a result of driving under

the influence in violation of clause (ii), (iii), or (iv) of § 18.2-266 . . . unintentionally causes the

death of another person, shall be guilty of involuntary manslaughter.” Code § 18.2-36.1(A). If

there could be any doubt about the dependent connection between Code § 18.2-266 and Code

§ 18.2-36.1, the legislature eliminated that doubt. The legislative intent is clear: by enacting

“rebuttable presumptions” that arise in any prosecution for a violation of Code § 18.2-36.1 when

a blood analysis results from arrests under Code § 18.2-266, the General Assembly codified the

dependent connection. In pertinent part, Code § 18.2-269 provides as follows:

B. In any prosecution for a violation of § 18.2-36.1 or
§ 18.2-266(ii), or any similar ordinance, the amount of alcohol in
the blood of the accused at the time of the alleged offense as
indicated by a chemical analysis of a sample of the accused’s
blood or breath to determine the alcohol content of his blood in
accordance with the provisions of §§ 18.2-268.1 through
18.2-268.12 shall give rise to the following rebuttable
presumptions:

(1) If there was at that time 0.05 percent or less by weight by
volume of alcohol in the accused’s blood or 0.05 grams or less per
210 liters of the accused’s breath, it shall be presumed that the
accused was not under the influence of alcohol intoxicants at the
time of the alleged offense;

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(2) If there was at that time in excess of 0.05 percent but less
than 0.08 percent by weight by volume of alcohol in the accused’s
blood or 0.05 grams but less than 0.08 grams per 210 liters of the
accused’s breath, such facts shall not give rise to any presumption
that the accused was or was not under the influence of alcohol
intoxicants at the time of the alleged offense, but such facts may be
considered with other competent evidence in determining the guilt
or innocence of the accused; or

(3) If there was at that time 0.08 percent or more by weight by
volume of alcohol in the accused’s blood or 0.08 grams or more
per 210 liters of the accused’s breath, it shall be presumed that the
accused was under the influence of alcohol intoxicants at the time
of the alleged offense.

Indeed, the connection between the statutes is amply demonstrated in this case by the

Commonwealth’s use, in this prosecution under Code § 18.2-36.1, of the blood analysis evidence

which was derived from blood drawn from Stevens under Code § 18.2-268.2. The

Commonwealth used the blood analysis evidence from blood drawn from Stevens under the

implied consent law. The Commonwealth’s expert testified that the analysis revealed Stevens’s

blood alcohol content was .12 by weight by volume and that this result would result in decreased

steering accuracy, decreased vision, decreased decision-making ability, and a general loss of

coordination. This evidence was critical in establishing that Stevens was intoxicated and that

Stevens’s conduct met the gross and wanton standard, elevating his sentence to aggravated

involuntary manslaughter.

Stevens’s consent for the taking and testing of his blood was statutorily implied and

sanctioned because “he [was] arrested for violation of [Code] § 18.2-266.” Code § 18.2-268.2.

Furthermore, by denying Stevens’s motion to bar the prosecution under Code § 18.2-36.1, the

trial judge has permitted the Commonwealth to benefit from its violation of the implied consent

law. Because of the violation of the implied consent law following his arrest, Stevens had no

opportunity to obtain an independent analysis of his blood and, therefore, was precluded from

any opportunity that might have advantaged him under the rebuttable presumption statute of
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Code § 18.2-269. See Shoemaker, 18 Va. App. at 64, 441 S.E.2d at 356 (holding that dismissal

was required because “the independent test results could have been exculpatory”). As we held in

Breeden, “[o]nce the Commonwealth has elected to have a driver take a blood or breath test

pursuant to Code § 18.2-268, the driver has a right to receive the benefits of the test.” 15

Va. App. at 150, 421 S.E.2d at 675.

For these reasons, I would reverse the conviction.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1063435. Public record. Not legal advice.