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Thurston v. City of Lynchburg12/15/1992
OPINION BY CHIEF JUDGE LAWRENCE L. KOONTZ, JR.
In a bench trial in the Circuit Court of the City of Lynchburg, Malcolm Glenn Thurston, appellant, was convicted of driving under the influence of alcohol in violation of Lynchburg City ordinance 25-162. On appeal, Thurston contends (1) the trial court erred in admitting into evidence the results of the test administered to
determine the alcohol content of his blood; (2) in the absence of the disputed blood test results, the evidence was insufficient to convict him of driving under the influence of alcohol; and (3) the trial court erred in denying his motion for a mistrial based on improper statements made by the Commonwealth's Attorney during the trial. For the reasons that follow, we affirm Thurston's conviction.
I. Factual Background
In the early morning hours of October 24, 1990, Officer Jack Lewis of the Lynchburg Police Department observed Thurston driving his car on a public street in the City of Lynchburg. Officer Lewis further observed the car traveling ten to fifteen miles per hour in excess of the posted forty-five mile per hour speed limit and, at times, drifting over the white line on the side of the road and then back across the center dividing lines. Officer Lewis stopped the car and, upon approaching Thurston, noticed a "moderate odor of alcohol" about Thurston. When asked where he was going, Thurston replied, "I don't really know." Officer Lewis conducted various field sobriety tests, and Thurston performed them with varying degrees of success. Following the administration of a field "alcosensor" test, Officer Lewis arrested Thurston and informed him of Virginia's implied consent law embodied in Code § 18.2-268.2. Thurston elected to have a sample of his blood taken for analysis.
Thereafter, Officer Lewis transported Thurston to Lynchburg General Hospital for the purpose of obtaining the blood sample. At the hospital, Linda Taylor, a registered professional nurse, explained the procedure involved, obtained Thurston's consent, made the required preparations, and began to draw a sample of Thurston's blood. As the blood was being drawn, Thurston reached down and pulled the needle out of his vein. At that point, nurse Taylor had obtained "less than ten" cubic centimeters of blood. She explained to Thurston that she "did not get enough blood for two samples" and offered "to stick him [again] to get another sample." Thurston replied, "you only get one chance, baby." No further sample was taken.
Nurse Taylor then advised Officer Lewis that "normal procedure" or "hospital policy" was to obtain a sample of twenty cubic centimeters of blood so that ten cubic centimeters could be placed into each of
two vials for analysis. In response, Officer Lewis instructed nurse Taylor to place the entire sample obtained into one vial. Officer Lewis sent that vial to the Division of Forensic Science Central Laboratory, a state laboratory, for analysis. The resulting certificate of analysis from the state laboratory showed a test result of .22 percent blood alcohol content by weight by volume. Over Thurston's objection, this certificate was admitted into evidence at Thurston's trial.
At the Conclusion of the City's case, Thurston called several witnesses and testified in his own defense. Thurston admitted that beginning at 8:30 p.m. on the evening immediately preceding his arrest by Officer Lewis he had consumed two beers, three other alcoholic drinks, and one after-dinner liqueur in two local bars. He maintained
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