CHAPTER 635

An Act to amend and reenact § 18.1-55.1, as amended, of the Code of
Virginia, relating to the use of chemical tests to determine the alco-
holic content of blood; procedure; costs; evidence; suspension of
driver’s license for refusal to submit to test. 8 19

[S 194]

Approved April 6, 1966

Be it enacted by the General Assembly of Virginia:

1. That § 18.1-55.1, as amended, of the Code of Virginia be amended and
reenacted as follows:

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

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 condition of
such operation, to have consented to have a sample of his blood taken for
a chemical test to determine the alcoholic content thereof, if such person is
arrested for a violation of § 18.1-54 or of a similar ordinance of any county,
city or town within two hours of the alleged offense.

(c) Ifa 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 content 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 forr
provided by the Chief Medical Examiner of Virginia (hereinafter referrec
to as Chief Medical Examiner), or refuses or fails to so declare in writing
and such fact is certified as prescribed in paragraph (j), then no blooc
sample shall be taken even though he may thereafter request same.

(d) Only a physician, registered professional nurse, graduate labora.
tory technician or a technician or nurse designated by order of a court of
record acting upon the recommendation of a licensed physician, using soar
and water to cleanse the part of the body from which the blood is taker
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 withdraw blood for the
purpose of determining the alcoholic content thereof. No civil liabilit
shall attach to any person authorized to withdraw blood as provided here?
as a result of the act of withdrawing blood from any person submitting
thereto, provided the blood was withdrawn according to recognized med.
ical procedures; and provided further that the foregoing shall not reliev
any such person from liability for negligence in the withdrawing of an
blood sample.

(d1) Portions of the blood sample so withdrawn shall be placed ir
each of two vials provided by the Chief Medical Examiner, which vial:
shall be sealed and labeled by the person taking the sample or at his direc.
tion, showing on each the name of the accused, the name of the persor
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 Medica
Examiner, which containers shall be sealed so as not to allow tampering
with the contents. The arresting or accompanying officer shall take posses.
sion of the two containers holding the vials as soon as the vials are placec
in such containers and sealed, and shall transport or mail one of the vials
forthwith to the Chief Medical Examiner. The officer taking possessior
of the other container (hereinafter referred to as second container) shall
immediately after taking possession 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 shal] contain :
space for the accused or his counsel to direct the officer possessing suct
second container to forward that container to such approved laborator}
for analysis, if desired. The officer having the second container, afte!
delivery of the form referred to in the preceding sentence (unless at tha
time directed by the accused in writing on such form to forward the
second container to an approved laboratory of the accused’s choice, 11
which event the officer shall do so) shall deliver said second container t¢
the chief police officer of the county, city or town in which the case will b
heard, and the chief police officer who receives the same shall keep it 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 t
mail it to the laboratory of the accused’s choice chosen from the approvec
list. As used in this section, the term “chief police officer” shal] mean th
sheriff * in any county not having a chief of police, the chief of police of an
county having a chief of police, the chief of police of the city or th
sergeant or chief of police of the town in which the charge will be heard.

(d2) The testing of the contents of the second container shall b

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trial of the case shall be the same as for the sample sent to the Chief
Medical Examiner.

(d3) <A fee not to exceed $15.00 shall be allowed the approved lab-
oratory 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.

(d4) If the chief police officer having possession of the second con-
tainer is 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 shal]
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 state-
ment that the container seal had not been broken or otherwise tampered
with, a statement that the container was one provided by the Chief Med-
ical 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 container 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.

(f) When any blood sample taken in accordance with the provisions
of this section is forwarded for analysis to the office of the Chief Medical
Examiner, 2 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.

(i) In any 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 other-
wise limit the introduction of any relevant evidence bearing upon any
question at issue before the court, and the court shall, regardless of the
result of the blood test or tests, if any, consider such other relevant evi-
dence 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 evi-
dence 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
(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 sig-
nature 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, if 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
committing 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 intoxi-
cants shall be tried.

(1) When the court receives the declaration or 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 desig-
nate, 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 deter-
mine 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
ninety 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 refusals;
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 Commis-
sioner 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 provided
by law for misdemeanors.

(q) No person arrested for violation of § 18.1-54 or a similar ordi-
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, iden-
tification, 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 noncompliance with the
aforesaid procedure or any part thereof, and that as a result his rights
were prejudiced.

The governing bodies of the several counties, cities and towns are
authorized to adopt ordinances paralleling the provisions of (a) through
(3s) of this section.