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Cutright v. Commonwealth8/17/2004
The trial court convicted Richard A. Cutright of driving while intoxicated in violation of Code § 18.2-266. Because the Commonwealth gave him only one laboratory to choose from to perform an independent blood analysis, Cutright argues that the court should have dismissed his DUI charge or, short of that, at least suppressed the results of the blood tests. Finding neither remedy applies in this case, we affirm.
I.
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.'" Seaton v. Commonwealth, 42 Va. App. 739, 743, 595 S.E.2d 9, 11 (2004) (citation omitted).
On February 16, 2002, at 2:55 a.m., Richard Cutright drove into a commuter parking lot. Noticing Deputy G.M. Harvey sitting in his police cruiser, Cutright approached and asked him if he had seen some people Cutright was looking for. Deputy Harvey detected a strong odor of alcohol coming from Cutright and "asked him how much he had had to drink that evening." Cutright admitted drinking about "eight beers" earlier in the evening. Having observed Cutright driving into the lot, Deputy Harvey conducted four field sobriety tests on Cutright, three of which he failed, as well as a preliminary breath test, which produced a high result. Deputy Harvey then arrested Cutright for driving under the influence .
Deputy Harvey informed Cutright of Virginia's implied consent law and transported him to Mary Washington Hospital for a blood test. Medical personnel drew two vials of blood. Harvey retained one vial for analysis by the Division of Forensic Science. He provided Cutright with a form so Cutright could choose an additional laboratory for an independent analysis of the second vial. The form listed only one approved laboratory, Medical College of Virginia Toxicology Laboratory. Cutright requested that the second vial of blood be sent to MCV. Both the Division of Forensic Science and MCV found Cutright's blood alcohol content to be .12%.
The Commonwealth charged Cutright by misdemeanor warrant asserting a violation of Code § 18.2-266. After being convicted in the general district court, Cutright appealed to the circuit court for a trial de novo.
At the time of Cutright's arrest, Code § 18.2-268.6 provided that the arresting officer "shall give to the accused a form provided by the Division which sets forth the procedure to obtain an independent analysis of the blood in the second container, and a list of the names and addresses of laboratories approved by the Division." The statute continued: "If the accused directs the officer in writing on the form to forward the second container to an approved laboratory of the accused's choice, the officer shall do so." Id.
In the circuit court, Cutright did not challenge the prosecution's evidence of his inability to pass simple field sobriety tests, his admitted consumption of eight beers, the strong smell of alcohol coming from him, or, for that matter, the Commonwealth's assertion that he had driven under the influence of alcohol. Instead, Cutright argued only that Code § 18.2-268.6 guaranteed him the right to choose between at least two independent laboratories. Because only one laboratory had contracted with the Commonwealth to provide independent testing services, Cutright argued, the trial court erred in not dismissing the DUI charge or, at a minimum, in not suppressing the BAC test results. The tr
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