Chemical Test Procedure & Admissibility
Va. Code §§ 18.2-268.4 to 18.2-268.12 — where DUI suppression is actually won and lost
1. The Scheme in One View
§§ 18.2-268.4 to 18.2-268.12 — what each section does
| Section | What it governs |
|---|---|
| § 18.2-268.4 | TRIAL AND APPEAL FOR REFUSAL — not, despite its reputation, the test-procedure section |
| § 18.2-268.5 | WHO may draw blood, and the required procedure for taking it |
| § 18.2-268.6 | Transmission of blood samples |
| § 18.2-268.7 | Analysis, the certificate, ADMISSION IN EVIDENCE, and the independent-analysis right |
| § 18.2-268.8 | Fees |
| § 18.2-268.9 | BREATH — equipment, operator licensing, the certificate, and admission in evidence |
| § 18.2-268.10 | What the results prove, and what they do not |
| § 18.2-268.11 | SUBSTANTIAL COMPLIANCE — the keystone |
| § 18.2-268.12 | Ordinances |
Two of these do most of the work in litigation: § 18.2-268.11 decides whether a procedural defect matters at all, and § 18.2-268.9 or § 18.2-268.7 supplies the route by which the certificate reaches the fact-finder.
2. THE KEYSTONE — § 18.2-268.11 Substantial Compliance
How to use it
- It covers §§ 18.2-268.2 THROUGH 18.2-268.9 That range includes the implied-consent and refusal sections as well as the blood and breath procedures.
- The defence must show PREJUDICE, not merely a departure The statute gives the defendant a right to prove noncompliance AND resulting prejudice. Both limbs.
- A defect is an argument about WEIGHT, addressed to the fact-finder It is not, by itself, a basis for exclusion or for a not-guilty finding.
How the courts apply it
Henry v. Commonwealth Record No. 3243-03-3 (Va. Ct. App. Jan. 11, 2005), Court of Appeals of Virginia (published), 2005
binding
The savings clause applies to BREATH tests as well as blood: "To treat the breath test differently than the blood test in the application of Code § 18.2-268.11 would 'lead to an absurd result' not intended by the legislature." And, reading §§ 18.2-268.9 and 18.2-268.11 together with the regulation, "in the absence of a showing of PREJUDICE by the appellant, substantial compliance is sufficient for the admission of the test results." On the facts, the machine was NOT stored in strict compliance with 6 VAC 20-190-40, yet the results were properly admitted — the machine's self-correcting mechanism gave no warning, no tampering or inaccuracy was alleged, and no prejudice was shown. (Citing Cutright v. Commonwealth, 43 Va. App. 593, 600-01, 601 S.E.2d 1, 10-11 (2004), and Snider v. Commonwealth, 26 Va. App. 729, 732, 496 S.E.2d 665, 666 (1998).)
THE CASE TO HAVE READY. It is a regulation-breach case that the Commonwealth WON. Cited by record number — its reporter citation could not be confirmed in a primary source.
3. Breath — § 18.2-268.9
What the section requires
- The analysis must be performed by an individual holding a VALID LICENCE to conduct such tests With "a type of equipment and in accordance with methods approved by the Department" of Forensic Science.
- The Department establishes the training programme and licenses operators The licence identifies the SPECIFIC TYPES of breath test equipment on which the individual completed training — check the operator's licence covers the machine actually used.
- The certificate must show a defined list of things That the test was conducted in accordance with the Department's specifications, the name of the accused, that the accused was advised of the right to observe the process and see the reading, the date and time the sample was taken, the sample's alcohol content, and the name of the person who examined the sample.
- "A copy of the certificate shall be PROMPTLY DELIVERED to the accused"
4. Blood — §§ 18.2-268.5, .6 and .7
§ 18.2-268.5 — who may draw, and how
- ONLY a physician, registered nurse, licensed practical nurse, phlebotomist, graduate laboratory technician, or a technician or nurse designated by order of a circuit court A closed list. Establish which category the drawer fell into.
- The cleansing agent is restricted Soap and water, polyvinylpyrrolidone iodine, pvp iodine, povidone iodine or benzalkonium chloride. An alcohol swab is not on the list, which is why the question gets asked.
- Sterile instruments or chemically clean sterile disposable syringes It is a CLASS 3 MISDEMEANOR to reuse single-use-only needles or syringes.
- The accused SHALL NOT be required to execute a waiver or release of liability A refusal to sign one is therefore not a refusal of the test.
§ 18.2-268.7 — analysis, certificate and independent testing
- The Department examines the sample and executes a CERTIFICATE recording receipt, examination, seal integrity and results
- Admissible "in any court as evidence" when ATTESTED BY THE DIRECTOR In a criminal case, subject to the same § 19.2-187.1 gateway and the absence of an objection under its subsection B.
- ⚠️ THE ACCUSED MAY REQUEST TRANSMISSION OF THE REMAINDER to an INDEPENDENT LABORATORY — within 90 DAYS The laboratory must be accredited or certified by a specified body meeting forensic-specific requirements. Diary the 90 days; a late request is a different argument from a denied one.
5. What the Result Proves — § 18.2-268.10
Four things the section does
- Test results do NOT limit other evidence "[T]he admission of the blood or breath test results shall not limit the introduction of any other relevant evidence", and the court must consider other admissible evidence of the accused's condition.
- For DRUGS other than alcohol, the result is admissible only with linking evidence Admissible "if other competent evidence has been presented to relate the presence of the drug or drugs to the impairment". A positive drug screen alone does not carry the case.
- A failure to permit a sample is NOT evidence and shall not be commented on Except in rebuttal, or under subsection C.
- An unreasonable-refusal finding comes in for ONE purpose only "[F]or the sole purpose of explaining the absence at trial of a chemical test", and it "shall not be considered evidence of the accused's guilt."
6. Trying a Refusal — § 18.2-268.4
What the section provides
- Tried in the court of the county or city where the DUI is to be tried
- Followed as for a misdemeanor; on appeal to circuit court the Commonwealth must prove its case BEYOND A REASONABLE DOUBT Even though a first refusal is a civil offence — see the implied-consent sheet for the civil/criminal split.
- The court MAY DISMISS the refusal where the defendant pleads guilty to the related intoxication charge Worth knowing before a plea discussion: the refusal is not automatically disposed of, and dismissal is discretionary.
- The court deals with the licence, and suspensions remain in effect for the applicable periods
7. Defence Attacks & Responses
| Defense attack | Prosecution response |
|---|---|
| The machine wasn't stored as the regulation requires, so the result is inadmissible. | That is Henry on its facts, and the Commonwealth won. The storage step is within §§ 18.2-268.2 to 18.2-268.9, so § 18.2-268.11 makes it a weight question and requires a showing of PREJUDICE. Ask what about the result is said to be wrong — not what protocol was departed from. |
| The blood draw used the wrong cleansing agent. | A real point on the face of § 18.2-268.5, and worth meeting with evidence. But it is again a § 18.2-268.11 step: absent prejudice — some reason to think the reading was affected — it goes to weight. |
| Nobody gave him a copy of the breath certificate. | § 18.2-268.9 requires prompt delivery, and it is a step within the savings clause. Establish what was delivered and when; if it was not, be ready on prejudice. |
| He refused to sign the liability waiver, so there was no valid consent. | § 18.2-268.5 expressly provides the accused shall NOT be required to execute a waiver or release of liability. Refusing to sign one is not a refusal of the test. |
| The drug screen was positive, so he was under the influence. | Not on its own — and this cuts against overreaching. § 18.2-268.10 admits a drug result only where "other competent evidence has been presented to relate the presence of the drug or drugs to the impairment". Lead the linking evidence. |
| He was over the per se limit for fentanyl. | There is no such limit. The per se thresholds in § 18.2-266(v) cover cocaine, methamphetamine, PCP and MDMA only. An opioid case is an impairment case. |
| The Commonwealth never objected to our § 19.2-187.1 demand. | THE ONE TO TAKE SERIOUSLY. The notice-and-demand gateway is not within the §§ 18.2-268.2 to 18.2-268.9 range, so § 18.2-268.11 does not save a failure there. Diary those deadlines. |
8. Before the Suppression Hearing
- Identify which SECTION the complaint is really about §§ 18.2-268.2 to .9 → substantial compliance. § 19.2-187.1 → a genuine admissibility fight.
- § 18.2-268.11 raised expressly, with the burden of showing PREJUDICE placed on the defence
- BREATH: operator's licence covers the machine actually used
- BREATH: certificate shows every item § 18.2-268.9 requires, and a copy was promptly delivered
- BLOOD: the drawer's category under § 18.2-268.5 established
- BLOOD: cleansing agent recorded, and it is one of the four named
- BLOOD: any independent-analysis request checked against the 90-DAY limit
- § 19.2-187.1 notice given and any objection/demand deadlines diaried
- DRUG case: linking evidence relating the drug to the impairment, per § 18.2-268.10
- Per se figures taken from § 18.2-266(v), NOT from § 18.2-268.10
9. Annotated Authority
Annotated authority — research layer, not printed on the PDF
Henry v. Commonwealth Rec. No. 3243-03-3 (Va. Ct. App. Jan. 11, 2005), Va. Ct. App., 2005
CONVICTION AFFIRMED, and note what the court CONCEDED on the way. The breath machine sat "IN A HALLWAY OF THE SHERIFF'S DEPARTMENT ACCESSIBLE TO THOSE OTHER THAN AUTHORIZED LICENSEES", and the court AGREED "the equipment was NOT STORED IN STRICT COMPLIANCE with 6 VAC 20-190-40." It did not matter, for two reasons. FIRST, § 18.2-268.11's savings clause reaches BREATH as well as blood: "[t]o treat the breath test differently than the blood test in the application of Code § 18.2-268.11 would 'LEAD TO AN ABSURD RESULT' not intended by the legislature." SECOND, the clause makes the listed steps "PROCEDURAL AND NOT SUBSTANTIVE. SUBSTANTIAL COMPLIANCE SHALL BE SUFFICIENT", and the police substantially complied because "[n]o evidence established that the police failed to comply with any of the regulations governing the 'TAKING, HANDLING, IDENTIFICATION AND DISPOSITION OF BREATH SAMPLES'."
Practical value: ⚠️ THE DISTINCTION IS THE WHOLE CASE, AND IT IS EASY TO MISS. The savings clause covers the steps for TAKING, HANDLING, IDENTIFYING AND DISPOSING OF SAMPLES. STORAGE OF THE MACHINE IS NOT ONE OF THEM — which is why a conceded breach of 6 VAC 20-190-40 did not reach the result. Do not read Henry as forgiving any regulatory breach; read it as holding that this particular regulation is outside the enumerated steps. Practically: when the defence attacks the machine's storage or location, the answer is that the attack aims at the wrong regulation. When it attacks the taking or handling of the sample, substantial compliance is the standard and the Commonwealth must actually show it.
Cutright v. Commonwealth 43 Va. App. 593, 600-01, 601 S.E.2d 1, 10-11, Va. Ct. App., 2004
One of the three decisions Henry relies on for applying § 18.2-268.11's substantial-compliance savings clause to the admissibility of test results.
Practical value: Cite the line — Cutright, Rollins and Snider — rather than Henry alone when the question is whether the savings clause applies at all. Henry's contribution is extending it expressly to BREATH.
Snider v. Commonwealth 26 Va. App. 729, 732, 496 S.E.2d 665, 666, Va. Ct. App., 1998
The earliest of the three Henry cites for the savings clause's application to the admissibility of chemical test results.
Practical value: Useful for showing the rule is long settled rather than a recent gloss.
Blain v. Commonwealth 7 Va. App. 10, 16, 371 S.E.2d 838, 842, Va. Ct. App., 1988
"The admissibility of evidence is WITHIN THE BROAD DISCRETION of the trial court, and a ruling WILL NOT BE DISTURBED on appeal IN THE ABSENCE OF AN ABUSE OF DISCRETION."
Practical value: The deference that protects a favourable admissibility ruling — and Shooltz is the limit on it.
Shooltz v. Shooltz 27 Va. App. 264, 271, 498 S.E.2d 437, 441, Va. Ct. App., 1998
"[A] trial court 'BY DEFINITION ABUSES ITS DISCRETION WHEN IT MAKES AN ERROR OF LAW'" (quoting Koon v. United States, 518 U.S. 81, 100 (1996)).
Practical value: The bridge from deference to de novo review: where the ruling turns on what § 18.2-268.11 means, discretion gives the Commonwealth no protection. ⚠️ READ THE CAPTION — Shooltz v. Shooltz is a DOMESTIC RELATIONS case. It is cited here purely for the abuse-of-discretion formulation, which is general.
Rollins v. Commonwealth 37 Va. App. 73, 79-80, 554 S.E.2d 99, 102-03, Va. Ct. App., 2001
"In determining whether the trial court made an error of law, 'we review the trial court's STATUTORY INTERPRETATIONS AND LEGAL CONCLUSIONS DE NOVO'" (quoting Timbers). Rollins is also one of the three decisions Henry cites for the savings clause.
Practical value: Does double duty on this sheet — the standard of review AND the savings clause.
Timbers v. Commonwealth 28 Va. App. 187, 193, 503 S.E.2d 233, 236, Va. Ct. App., 1998
The source of the de novo formulation Rollins quotes.
Practical value: Cite with Rollins where the dispute is about the meaning of the statute rather than about the facts of compliance.
Lee County v. Town of St. Charles 264 Va. 344, 348, 568 S.E.2d 680, 682, Va., 2002
"[W]e consider ALL RELEVANT PROVISIONS of a statute and DO NOT ISOLATE PARTICULAR WORDS OR PHRASES."
Practical value: The construction rule that decided Henry: read § 18.2-268.11 whole, and the blood/breath distinction the defendant wanted disappears. ⚠️ A LOCAL-GOVERNMENT CASE, on a DUI evidence sheet, for a general canon. Henry also cites BRANCH, 14 Va. App. 836, 839, for "a statute should never be construed so that it leads to absurd results" — ⚠️ that is the SAME Branch annotated on the FIREARMS-DISCHARGE sheet for a malice holding, and it is NOT annotated here, because only its malice holding has been read in this project.