On Wednesday, January 25, 2006, Henrico County Circuit Court Judge Gary A. Hicks dismissed a charge of driving under the influence because of a flaw in the Commonwealth's evidence. Prosecutors attempted to prove the defendant's blood alcohol content (BAC) by introducing hospital records made during the course of treatment. The Commonwealth argued that this records were admissible under Virginia Code Section 19.2-187.02, which permits medical providers to disclose private healthcare records containing blood alcohol results for the purpose of DWI prosecutions. Charles J. Homiller, attorney for the defendant, argued that the records should not be admissible, or at least not credible, because the statute circumvents Virginia's implied consent law and in no way regulates the collection of blood like the implied consent law does.
The case involved a defendant who was involved in a single vehicle accident late at night. When the police arrived on scene, the defendant was already being prepared for transport by paramedics to the hospital. The defendant had suffered a significant head injury, which required immmediate trauma care attention. While at the Virginia Commonwealth University Medical Center in Richmond, Virginia, the defendant was treated for his injuries, part of which required the drawing of his blood. While in the emergency room, the defendant was questioned by Henrico County Police about the accident and his alcohol consumption. Based on the responses he received from the defendant, as well as the surrounding circumstances, the officer admitted at trial that he believed he had probable cause to arrest the defendant for driving while intoxicated. However, the officer did not arrest the defendant at that time, even though he was within the three hour window required by the implied consent statute. When asked why he did not arrest the defendant and have his blood drawn under the implied consent statute, the officer responded that he knew the hospital would draw it, therefore he didn't have to.
Instead, two and a half weeks after the accident, the officer obtained a search warrant for the defendant's medical records to produce evidence of his blood alcohol content. Based on that information, the officer proceeded to arrest the defendant for driving while intoxicated.
The implied consent statute, which requires a defendant to submit to a blolod or breath test if arrested within three hours of the alleged offense, prescribes certain qualifications and procedures that must be met and followed during the blood collection process. While a deviation from any of the procedures will not necessarily render the evidence inadmissible, the credibility of that evidence may be called into question. Additionally, the implied consent law grants the defendant the ability to request an independent analysis of the blood sample to verify the result obtained by the state. In this case, however, the implied consent statute was not invoked because the defendant was not arrested within three hours of the alleged offense.
In issuing his decision, Judge Hicks stated that he was concerned with the lack of evidence concerning the blood collection procedure. No evidence was presented by the Commonwealth concerning the qualifications of the person drawing and/or analyzing the blood, the procedure used to collect and store the blood, or the time the blood was collected and tested. The Commonwealth argued that based on 19.2-187.02, there was no requirement that the state put on evidence concerning these issues. However, Judge Hicks agreed with defense counsel that the manner in which the blood alcohol results were obtained created enough doubt about the reliability of the evidence as to render it inadmissible.
This decision is important to persons charged with DUI/DWI in the wake of the controversy over the constitutionality of the per se presumption of intoxication. This holding would disallow the Commonwealth from merely presenting a person's protected medical records as proof of intoxication without providing evidence that the blood was collected in a suitable manner. Moreover, it would limit the Commonwealth's ability to issue a search warrant for such records and hide behind 19.2-187.02 instead of following the requirements of the implied consent law.
Recent Comments