CHAPTER 240

An Act to amend and reenact §§ 18.1-57 and 18.1-59 as amended, of the
Code of Virginia, and to amend the Code of Virginia by adding
thereto a new section numbered 18.1-55.1, the new and amended sec-
tions relating to consent for the taking of blood samples of persons
arrested for operating motor vehicles while under the influence of
intoxicants or drugs; how such consent shall be implied; procedure
for taking and testing blood samples for alcoholic content; conse-
quence of refusal to consent; suspension of driving privileges and
licenses by the court for failure to consent; administration of test;
costs; admissibility in evidence of results of analysis; evidentiary
effect of test; terms of suspension of such privileges and licenses
under certain circumstances; and to repeal §§ 18.1-55 and 18.1-56 as
amended, of the Code of Virginia, relating to the same eubjects. 72)

Approved March 31, 1964

Be it enacted by the General Assembly of Virginia:

1. That §§ 18.1-57 and 18.1-59, as amended, of the Code of Virginia,
be amended and reenacted, and that the Code of Virginia be amended
by adding thereto a new section numbered 18.1-55.1, the amended and
new sections being as follows:

§ 18.1-55.1. (a) As used in this section “license” means any opera-
tor’s, chauffeur’s or learner’s permit or license authorizing the operation
of a motor vehicle upon the highways.

(b) Any person whether licensed by Virginia or not, who operates
a motor vehicle upon a public highway in this State on and after July
one, nineteen hundred sixty-four, shall be deemed thereby, as a condi-
tion of such operation, to have consented to have a sample of his blood
taken for a chemical test to determine the alcoholic content thereof,
af such person is arrested for a violation of § 18.1-54 or of a smilar
ome? of any county, city or town within two hours of the alleged
offense.

(c) If a person after being arrested for a violation of § 18.1-54 or
of a similar ordinance of any county, city or town and after having
been advised by the arresting officer that a person who operates a motor
vehicle upon a public highway in this State shall be deemed thereby,
as a condition of such operation, to have consented to have a sample
of his blood taken for a chemical test to determine the alcoholic con-
tent thereof, and that the unreasonable refusal to do so constitutes
grounds for the revocation of the privilege of operating a motor vehicle
upon the highways of this State, then refuses to permit the taking of
a sample of his blood for such tests, the arresting officer shall take the
person arrested before a committing magistrate and if he does again
so refuse after having been further advised by such magistrate of the
law requiring a blood test to be taken and the penalty for refusal, and
so declares again his refusal in writing upon a form provided by the
Chief Medical Examiner of Virginia (hereinafter referred to as Chief
Medical Examiner), or refuses or fails to so declare in writing and such
fact is certified as prescribed in paragraph (7), then no blood sample shall
be taken even though he may thereafter request same.

Only a physician, registered professional n vse, graduate
laboratory technician or a technician or nurse designatea by order of a
court of record acting upon the recommendation of a licensed physician,
using soap and water to cleanse the part of the body from which the
blood is taken and using instruments sterilized by the accepted steam
sterilizer or some other sterilizer which will not affect the accuracy of
the test, or using chemically clean sterile disposable syringes, shall with-
draw blood for the purpose of determining the alcoholic content thereof.

(d-1) Portions of the blood sample so withdrawn shall be placed
in each of two vials provided by the Chief Medical Examiner, which
vials shall be sealed and labeled by the person taking the sample or at
his direction, showing on each the name of the accused, the name of
the person taking the blood sample, and the date and time the blood
sample was taken. The vials shall be placed in two containers provided
by the Chief Medical Examiner, which containers shall be sealed so as
not to allow tampering with the contents. The arresting or accompany-
ing officer shall take possession of the two containers holding the vials
as soon as the vials are placed in such containers and sealed, and shall
transport or mail one of the vials forthwith to the Chief Medical Exami-
mer. The officer taking possession of the other container (hereinafter
referred to as second container) shall, immediately after taking posses-
sion of said second container give to the accused a form provided by
the Chief Medical Examiner which shall set forth the procedure to
obtain an independent analysis of the blood in the second container,
and a list of those laboratories and their addresses, approved by the
State Health Commissioner; such form shall contain a space for the
accused or his counsel to direct the officer possessing such second con-
tainer to forward that container to such approved laboratory for analy-
sis, if desired. The officer having the second container, after delivery
of the form referred to in the preceding sentence (unless at that time
directed by the accused in writing on such form to forward the second
container to an approved laboratory of the accused’s choice, in which
event the officer shall do so) shall deliver said second container to the
chief police officer of the county, city or town in which the case will be
heard, and the chief police officer who receives the same shall keep tt
in his possession for a period of seventy-two (72) hours, during which
time the accused or his counsel may, in writing, on the form provided
hereinabove, direct the chief police officer having possession of the
second container to mail it to the laboratory of the accused’s choice
chosen from the approved list. As used in this section, the term “chief
police officer” shall mean the sheriff of the county, the chief of police
of the city or the sergeant or chief of police of the town in which the
charge will be heard.

(d-2) The testing of the contents of the second container shall be
made in the same manner as hereafter set forth concerning the proce-
dure to be followed by the Chief Medical Examiner, and all procedures
established herein for transmittal, testing and admission of the result
in the trial of the case shall be the same as for the sample sent to the
Chief Medical Examiner.

(d-8) A fee not to exceed $15.00 shall be allowed the approved
laboratory for making the analysis of the second blood sample which
fee shall be paid out of the appropriation for criminal charges. If the
person whose blood sample was withdrawn is subsequently convicted
for violation of § 18.1-54, or of a similar ordinance of any county, city
or town, the fee charged by the laboratory for testing the blood sample
Shall be taxed as part of the costs of the criminal case and shall be paid
into the general fund of the State treasury.

(d-4) If the chief police officer having possession of the second
container 1s not directed as herein provided to mail it within seventy-two
(72) hours after receiving said container then said officer shall destroy
same.

(e) Upon receipt of the blood sample forwarded to his office for
analysis, the Chief Medical Examiner shall cause it to be examined for
alcoholic content and he or an Assistant Chief Medical Examiner shall
execute a certificate which shall indicate the name of the accused, the
date, time and by whom the blood sample was received and examined,
a statement that the container seal had not been broken or otherwise
tampered with, a statement that the container was one provided by the
Chief Medical Examiner and a statement of the alcoholic content of
the sample. The certificate attached to the vial from which the blood
sample examined was taken shall be returned to the clerk of the court
in which the charge will be heard. The certificate attached to the con-
tainer forwarded on behalf of the accused shall also be returned to the
clerk of the court in which the charge will be heard, and such certificate
shall be admissible in evidence when attested by the pathologist or by the
supervisor of the laboratory approved by the State Health Commissioner.

When any blood sample taken in accordance with the provi-
sions of this section is forwarded for analysis to the office of the Chief
Medical Examiner, a report of the results of such analysis shall be
made and filed in that office. Upon proper identification of the vial into
which the blood sample was placed, the certificate as provided for in
this section shall, when duly attested by the Chief Medical Examiner, or
any Assistant Chief Medical Examiner, be admissible in any court, in
any criminal proceeding, as evidence of the facts therein stated and of
the results of such analysis.

(g) Upon the request of the person whose blood sample was taken
for a chemical test to determine the alcoholic content thereof, the results
of such test or tests shall be made available to him.

(h) A fee not exceeding five dollars shall be allowed the person
withdrawing a blood sample in accordance with this section, which
fee shall be paid out of the appropriation for criminal charges. If the
person whose blood sample was withdrawn is subsequently convicted
for violation of § 18.1-54 or of a similar ordinance of any county, city
or town, the amount charged by the person withdrawing the sample shall
be taxed as part of the costs of the criminal case and shall be paid into
the general fund of the State treasury.

(1) Inany trial for a violation of § 18.1-54 of the Code or of a similar
ordinance of any county, city or town, this section shall not otherwise limit
the introduction of any relevant evidence bearing upon any question at
assue before the court, and the court shall, regardless of the result of the
blood test or tests, if any, consider such other relevant evidence of the
condition of the accused as shall be admissible in evidence. The failure of
an accused to permit a sample of his blood to be withdrawn for a chemical
test to determine the alcoholic content thereof is not evidence and shall
not be subject to comment at the trial of the case; nor shall the fact that
a blood test had been offered the accused be evidence or the subject of
comment. |

(j) The form referred to in paragraph (c) shall contain a brief
statement of the law requiring the taking of a blood sample and the
penalty for refusal, a declaration of refusal and lines for the signature
of the person from whom the blood sample is sought, the date and the
signature of a witness to the signing. If such person refuses or fails
to execute such declaration, the committing justice, clerk or assistant
clerk shall certify such fact, and that the committing justice, clerk or
assistant clerk advised the person arrested that such refusal or failure,
tf found to be unreasonable, constitutes grounds for the revocation of
such person's license to drive. The committing or issuing justice, clerk
or assistant clerk shall forthwith issue a warrant charging the person
refusing to take the test to determine the alcoholic content of his blood,
with violation of this section. The warrant shall be executed in the same
manner as criminal warrants.
(k) The executed declaration of refusal or the certificate of the com-
mitting justice, as the case may be, shall be attached to the warrant and
shall be forwarded by the committing justice, clerk or assistant clerk to
the court in which the offense of driving under the influence of intoxicants
shall be tried.

(lt) When the court receives the declaration of refusal or certificate
referred to in paragraph (k) together with the warrant charging the
defendant with refusing to submit to having a sample of his blood
taken for the determination of the alcoholic content thereof, the court
shall fix a date for the trial of said warrant, at such time as the court
shall designate, but subsequent to the defendant’s criminal trial for
driving under the influence of intoxicants.

(m) The declaration of refusal or certificate under paragraph (k),
as the case may be, shall be prima facie evidence that the defendant
refused to submit to the taking of a sample of his blood to determine
the alcoholic content thereof as provided hereinabove. However, this
shall not be deemed to prohibit the defendant from introducing on his
behalf evidence of the basis for his refusal to submit to the taking of a
sample of his blood to determine the alcoholic content thereof. The court
shall determine the reasonableness of such refusal.

(n) If the court shall find the defendant guilty as charged in the
warrant, the court shall suspend the defendant’s license for a period of
90 days for a first offense and for six months for a second or subse-
quent offense or refusal within one year of the first or other such re-
fusals; the time shall be computed as follows: the date of the first offense
and the date of the second or subsequent offense.

(o) The court shall forward the defendant’s license to the Com-
missioner of the Division of Motor Vehicles of Virginia as in other cases
of similar nature for suspension of license unless, however, the defendant
shall appeal his conviction in which case the court shall return the license
to the defendant upon his appeal being perfected.

(p) The procedure for appeal and trial shall be the same as pro-
vided by law for misdemeanors.

(q) No person arrested for a violation of § 18.1-54 or a similar ordt-
nance of any county, city or town shall be required to execute in favor
of any person or corporation a waiver or release of liability in connection
with the withdrawal of blood and as a condition precedent to the with-
drawal of blood as provided for herein.

(r) The court or the jury trying the case shall determine the inno-
cence or the guilt of the defendant from all the evidence concerning his
condition at the time of the alleged offense.

(s) The steps herein set forth relating to the taking, handling,
identification, and disposition of blood samples are procedural in nature
and not substantive. Substantial compliance therewith shall be deemed
to be sufficient. Failure to comply with any one or more of such steps
or portions thereof, or a variance in the results of the two blood tests
shall not of itself be grounds for finding the defendant not guilty, but
shall go to the weight of the evidence and shall be considered as set
forth above with all the evidence in the case, provided that the defendant
shall have the right to introduce evidence on his own behalf to show
non-compliance with the aforesaid procedure or any part thereof, and
that as a result his rights were prejudiced.

§ 18.1-57. In any prosecution for a violation of § 18.1-54, or any
similar ordinance of any county, city or town, the amount of alcohol in
the blood of the accused at the time of the alleged offense as indicated
by a chemical analysis of the accused’s blood in accordance with the
provisions of § * 18.1-55.1, shall give rise to the following presumptions:

(1) If there was at that time 0.05 per cent or less by weight of alco-
hol in the accused’s blood, it shall be presumed that the accused was not
under the influence of alcoholic intoxicants ;

(2) If there was at that time in excess of 0.05 per cent but less than
0.15 per cent by weight of alcohol in the accused’s blood, such facts
shall not give rise to any presumption that the accused was or was not
under the influence of alcoholic intoxicants, but such facts may be con-
sidered with other competent evidence in determining the guilt or inno-
cence of the accused;

(8) If there was at that time 0.15 per cent or more by weight of
alcohol in the accused’s blood, it shall be presumed that the accused
was under the influence of alcoholic intoxicants.

§ 18.1-59. The judgment of conviction, or finding of not innocent
in the case of a juvenile, if for a first offense under § 18.1-54, or for a
similar offense under any county, city or town ordinance, shall of itself
operate to deprive the person so convicted or found not innocent of the
right to drive or operate any such vehicle, conveyance, engine or train
in this State for a period of one year from the date of such judgment, and
if for a second or other subsequent offense within ten years thereof for
a period of three years from the date of the judgment of conviction or
finding of not innocent thereof, any such period in either case to run
consecutively with any period of suspension for failure to permit a blood
sample to be taken as required by § * 18.1-55.1. If any person has hereto-
fore been convicted or found not innocent of violating any similar act of
this State and thereafter is convicted or found not innocent of violating
the provisions of § 18.1-54, such conviction or finding shall for the purpose
of this section and § 18.1-58 be a subsequent offense and shall be punished
accordingly; and the court may, in its discretion, suspend the sentence
during the good behavior of the person convicted or found not innocent.

2. That §§ 18.1-55 and 18.1-56 of the Code of Virginia, as amended, are
repeale

8. This act shall be in force and effect on and after July one, nineteen
hundred sixty-four.