                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Humphreys and Powell
Argued at Richmond, Virginia


BEVERLY DANDRIDGE SPROUSE
                                                                       OPINION BY
v.      Record No. 2515-07-2                                   JUDGE ROBERT J. HUMPHREYS
                                                                      MARCH 4, 2009
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF LOUISA COUNTY
                            Paul M. Peatross, Jr., Judge Designate

                (Steven Shareff, on brief), for appellant. Appellant submitting on
                brief.

                Richard B. Smith, Special Assistant Attorney General (Robert F.
                McDonnell, Attorney General, on brief), for appellee.


        Beverly Dandridge Sprouse (“Sprouse”) appeals his conviction for driving under the

influence, his third within ten years, in violation of Code § 18.2-266. On appeal, Sprouse

contends that, because he was not arrested within three hours of the offense, the certificate of

analysis used to convict him was not admissible pursuant to Virginia’s implied consent law.

Sprouse further contends that, absent the certificate of analysis, the evidence is insufficient to prove

that he drove under the influence of alcohol. For the reasons that follow, we agree with Sprouse’s

first contention and reverse the conviction.

                                           BACKGROUND

        On March 14, 2007, at approximately 2:00 a.m., Virginia State Trooper Calvin S.

Faudree (“Trooper Faudree”) responded to an accident in Louisa County. Arriving at the scene

after emergency personnel, Trooper Faudree “noticed a vehicle had run off the road . . . struck a
fence on the right shoulder . . . overturned several times and then struck a tree, all on the

right-hand side of the road.” He also observed tire tracks leaving the road itself.

        At that time, Sprouse was already in the back of an ambulance. When questioned by

Trooper Faudree, Sprouse admitted that he was the driver of the vehicle and that the accident

occurred around 1:30 a.m. While in the ambulance, Trooper Faudree observed that Sprouse’s

eyes were bloodshot and that he had an odor of alcohol emanating from his person. At that

point, Trooper Faudree asked Sprouse how much he had had to drink, to which he responded

“one and a half beers.” After administering a preliminary breath test, Trooper Faudree told

Sprouse that he would follow the ambulance to the hospital where Sprouse would be charged

with driving under the influence.

        Sprouse was then transported to the hospital. Around 3:45 a.m., a nurse obtained a blood

sample from Sprouse in the presence of Trooper Faudree. Once he obtained the sample, Trooper

Faudree issued Sprouse a summons charging him with driving under the influence. Sprouse

signed the summons, agreeing to appear in the general district court of Louisa County. At no

point following the accident did Trooper Faudree indicate to Sprouse that he was under arrest.

Trooper Faudree did not restrain or handcuff Sprouse, nor did he take Sprouse before a

magistrate.

        At trial, the Commonwealth offered as evidence a certificate of analysis indicating the

results of Sprouse’s blood test. 1 Sprouse objected to the introduction of the certificate of analysis

on the grounds that, because he was not arrested within three hours of the alleged offense, the blood




        1
            The certificate of analysis of the blood drawn from Sprouse showed an alcohol level of
.12%.

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test was not properly administered pursuant to Virginia’s implied consent law. See Code

§ 18.2-268.2. The trial court found that there was an arrest and admitted the certificate of analysis.

Sprouse was convicted, and this appeal followed.

                                             ANALYSIS

                        A. The Admissibility of the Certificate of Analysis

       A trial court’s exercise of discretion to admit or exclude evidence will not be overturned

on appeal unless the court abused its discretion. May v. Caruso, 264 Va. 358, 362, 568 S.E.2d

690, 692 (2002). However, a “trial court has no discretion to admit clearly inadmissible

evidence because ‘admissibility of evidence depends not upon the discretion of the court but

upon sound legal principles.’” Norfolk & Western Ry. Co. v. Puryear, 250 Va. 559, 563, 463

S.E.2d 442, 444 (1995) (quoting Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823

(1986)). Furthermore, a trial court’s interpretation of a statute is a question of law subject to de

novo review. Simon v. Forer, 265 Va. 483, 487, 578 S.E.2d 792, 794 (2003).

       Virginia’s implied consent statute, Code § 18.2-268.2(A), provides:

               Any person, whether licensed by Virginia or not, who operates a
               motor vehicle upon a highway, as defined in § 46.2-100, in the
               Commonwealth shall be deemed thereby, as a condition of such
               operation, to have consented to have samples of his blood, breath,
               or both blood and breath taken for a chemical test to determine the
               alcohol, drug, or both alcohol and drug content of his blood, if he is
               arrested for violation of § 18.2-266, 18.2-266.1, or subsection B of
               § 18.2-272 or of a similar ordinance within three hours of the
               alleged offense.

(Emphasis added).

       In Virginia, a defendant’s timely arrest for driving while intoxicated is a basic condition

underlying the implied consent statute. See Overbee v. Commonwealth, 227 Va. 238, 243, 315

S.E.2d 242, 244 (1984). Consequently, the Supreme Court of Virginia has held that if the arrest

requirements of implied consent are not satisfied, any certificate of analysis obtained pursuant to

                                                 -3-
Code § 18.2-268.2 is inadmissible at trial. Bristol v. Commonwealth, 272 Va. 568, 575, 636

S.E.2d 460, 464 (2006). In Bristol, the Supreme Court explained the arrest requirements of Code

§ 18.2-268.2:

                Under these provisions, a driver must be arrested within three hours of an
                offense before that driver may be required to submit to a breath or blood
                test. Because the driver’s timely arrest triggers the statutory consent
                requirement, the arrest must be completed before the driver may be
                required to take the test.

Id. at 574-75, 636 S.E.2d at 464 (emphasis added).

        Sprouse argues that the arrest requirements of Code § 18.2-268.2 were not satisfied in his

case, because he was never actually arrested for the offense. Conversely, the Commonwealth

argues that by signing the summons, Sprouse submitted to the officer’s authority and was,

therefore, arrested. See California v. Hodari D., 499 U.S. 621, 626 (1991) (holding that “[a]n

arrest requires either physical force . . . or, where that is absent, submission, to the assertion of

authority”). We need not decide whether the Commonwealth is correct in its assertion that

Sprouse was arrested when he signed the summons, because the facts in the record establish that

Sprouse signed the summons after he was required to submit to the blood test. Thus, given our

Supreme Court’s holding in Bristol, the trial court erred in admitting the certificate at trial

pursuant to Code § 18.2-268.2, because the purported arrest took place after the blood test was

administered.

                                   B. Sufficiency of the Evidence

        Sprouse also argues that, absent the certificate of analysis, the evidence is insufficient to

prove that he drove under the influence of alcohol. Essentially, Sprouse asks this Court to only

consider the legally admitted evidence in its sufficiency analysis. However, when assessing the

sufficiency of the evidence on appeal, “we consider all admitted evidence, including illegally

admitted evidence.” Hargraves v. Commonwealth, 37 Va. App. 299, 312-13, 557 S.E.2d 737, 743

                                                  -4-
(2002) (citing Lockhart v. Nelson, 488 U.S. 33, 41 (1988)). In this case, the trial court found the

evidence presented, including the certificate of analysis, sufficient to find Sprouse guilty beyond a

reasonable doubt. Regardless of whether the certificate was legally or illegally admitted into

evidence, we must consider it in our analysis of the sufficiency of the evidence. Because Sprouse

did not properly frame his sufficiency argument, we do not consider it on appeal.

                                           CONCLUSION

       For the foregoing reasons, we hold that the trial court erred in admitting the certificate of

analysis pursuant to Code § 18.2-268.2, because Sprouse’s blood was drawn for testing before he

was arrested. Therefore, we reverse the decision of the trial court and remand for a new trial, if the

Commonwealth be so inclined.

                                                                             Reversed and remanded.




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