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Kemp v. Commonwealth5/11/1993
OPINION BY JUDGE JAMES W. BENTON, JR.
On this appeal from a conviction of driving a motor vehicle while intoxicated in violation of Code § 18.2-266, Robert H. Kemp, Jr. contends that the trial Judge erred in admitting the certificate of blood analysis. He argues that the certificate should not have been admitted because the Commonwealth (1) did not prove that the person who took the blood sample was qualified to do so, and (2) was unable to account for the second vial of blood or produce the independent analysis of Kemp's blood. Kemp also contends the evidence was insufficient to sustain a conviction for driving under the influence of intoxicants. We reverse the conviction and dismiss the prosecution.
I.
Officer Suave testified that on November 22, 1990, at 3:30 a.m., he observed Kemp driving on Lorton Road in Fairfax County. The facts concerning the events of the stop are in dispute. Suave testified that he
had probable cause for arresting Kemp for driving while under the influence of alcohol or drugs. Kemp denied that he had used alcohol or drugs.
After arresting Kemp, Suave took Kemp to a police station, where a sample of Kemp's blood was taken for analysis as permitted by statute. Suave testified that during the procedure, he "observed the technician use soap and water." The blood sample was put into two vials. Kemp requested that one vial be sent to an approved independent laboratory for an independent analysis pursuant to Code § 18.2-268(G).
At trial, Suave testified that one vial of blood was taken to the Commonwealth's Division of Consolidated Laboratory Services for analysis, but he could not recall what Disposition had been made of the second vial of blood. Kemp objected to the admission of the certificate of blood analysis that the Commonwealth tendered because the
Commonwealth did not produce the second vial of blood or a certificate of analysis of that blood by an independent laboratory. The trial Judge overruled Kemp's objection and admitted the Commonwealth's certificate of blood analysis. The certificate noted that the blood alcohol content was 0.00 percent, by weight by volume. It also stated that the blood drug content indicated "Tetra-hydrocannabinol, 0.003 mg/L" and "THC Carboxylis Acid, 0.03 mg/L." No testimony or other evidence explained the relationship between the quantity of either substance and a person's condition or ability to drive a car or otherwise function.
In a motion to strike the evidence at the Conclusion of the Commonwealth's case, Kemp again objected to the admission of the Commonwealth's certificate of analysis. In addition to stating that the Commonwealth failed to comply with the statute, Kemp argued that the Commonwealth's evidence did not prove that the person who drew the blood was qualified to do so under Code § 18.2-268(F). The trial Judge overruled both objections and convicted Kemp.
II.
The relevant part of Code § 18.2-268(Z) stated:
The steps herein set forth relating to the taking, handling, identification, and Disposition of blood or breath samples are procedural in nature and not substantive. Substantial compliance therewith shall be deemed to be sufficient.
In a factually similar case, Wendel v. Commonwealth, 12 Va. App. 958, 407 S.E.2d 690 (1991), "the Commonwealth stipulated that it never received the results from the state forensic laboratory performing the analysis and that it was unable to acco
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