Virginia’s DUI laws are regularly changing and being reinterpreted. This blog tracks the evolution.
Elliott v. Commonwealth – “Phlebotomists” need not be “licensed” in order to draw blood.
Virginia law mandates that, for a valid DUI blood test, that the blood be drawn by a physician, registered nurse, licensed practical nurse, phlebotomist, graduate laboratory technician or a technician or nurse designated by order of a circuit court acting upon the recommendation of a licensed physician. (Va Code sec. 18.2-268.5). In this case, the person who drew the defendant’s blood was an EMT/Paramedic, employed by the jail and a local hospital to draw blood and perform tasks of a phlebotomist. She was not a licensed phlebotomist.
The defedant objected to the evidence of the blood tests becasue the EMT was not a “phlebotomist.” The Court held that licensure as a phlebotomist is not a requirement in the law and that the EMT’s testimony was sufficent to make her a “phlebotomist” for the purposes of the prosecution. The blood evidence was admitted and Elliott was convicted.
Elliott also argued that he was seized improperly. While monitoring a congested intersection, the arresting officer witnessed Elliott swerve between lanes and abruptly stop at a point past the “stop bar.” He was also yelling and gesturing at nearby motorists. A nearby motorist appeared to be concerned by appellant’s behavior. The Court held that this was sufficent cause for the police officer to order Elliott to stop his casr and to begin an investigation.
The conviction was affirmed.
Shorter v. Commonwealth – When your passenger testifies that you were not DUI because you were not even driving, make sure your witness does a good job on the stand.
In this DUI accident case, a witness heard a loud “bang” and saw an accident scene. He saw five people leave the crashed vehicle and saw the defendant lying in the front seat, under the steering wheel. A defense witness testified that she was a passenger and that the defendant was not driving.
The Court held that there was circumstantial evidence proving that the defendant was the driver. First, he was in the front seat under the steering wheel soon after the accident. Second, he fled the scene before the police arrived. Third, the trial judge did not believe the witness.
If possible, the defendant in this case should have called other passengers of his car to testify that he was not the driver.
It should be noted that one judge filed a concurring opinion. He wrote that he would have dismissed the case without even getting to the merits because Shorter failed to object to the sufficiency of the evidence at trial, preserving the appealable issue. This lesson should not be lost. Make sure you object timely and properly preserve your objections. In this case, the appeal was filed using a Statement of Facts and not a trial transcript. Never, never, never go to trial on a DUI in Circuit Court without hiring a court reporter to make a transcript. It is too easy to fall into a procedural default trap when you have to cobble together a Statement of Facts after the trial.
Woody v. County of Amherst – This case is a (hard) lesson on making certain you name the correct party in your appeal. This appeal of a DUI conviction was dismissed on procedural grounds, twice, without a hearing on the merits. The prosecution was conducted under the county’s DUI ordinances and not the state’s DUI laws. (In Virginia, localities can adopt state DUI laws by reference — doing so lets them keep the fine money). The Notice of Appeal was filed as “Commonwealth v. Woody” and not “Woody v. Amherst County.” As a result, the Court of Appeals refused to hear the merits of the case in 2008, holding that it wasn’t given jurisdiction over the County due to this misnomer. Woody didn’t give up. On this second attempt to have the Court hear the merits of the case, Woody argued that he correctly named the correct appellee — the County — on an appeal of the Circuit Court order clarifying the prosecuting authority. The Court held, however, that the clarifying order was not itself appealable because it just fixed a clerical error. Wow — be careful to name the correct appellee! This mistake is an easy one to make because, in many localities, the court is the same, the judge is the same, the prosecutor is the same, and the law is (substantively) the same.
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