                                                                      COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Alston and Russell
UNPUBLISHED


              Argued at Lexington, Virginia


              KENNETH EDWARD HICKS
                                                                                           MEMORANDUM OPINION BY
              v.            Record No. 1093-16-3                                           JUDGE ROSSIE D. ALSTON, JR.
                                                                                                 AUGUST 29, 2017
              COMMONWEALTH OF VIRGINIA


                                              FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
                                                            C. Randall Lowe, Judge

                                           Robert M. Galumbeck (Galumbeck and Kegley, Attorneys, on
                                           brief), for appellant.

                                           Eugene Murphy, Senior Assistant Attorney General (Mark R.
                                           Herring, Attorney General, on brief), for appellee.


                            Kenneth Edward Hicks (“appellant”) appeals his conviction for driving while under the

              influence of drugs, second offense within ten years, in violation of Code §§ 18.2-266 and

              18.2-270. Appellant argues that the trial court erred by failing to suppress the certificate of

              analysis from evidence, and by denying his motion to strike the evidence and motion to set aside

              the jury verdict. We disagree, and affirm the decision of the trial court.

                                                                              BACKGROUND

                            On March 12, 2015, while driving on Interstate 81, in Roanoke, Virginia, appellant hit a

              car parked on the side of the road. He was subsequently arrested for driving under the influence

              of drugs. At a jury trial on May 18, 2016, Mark Rudd, of the Safety Patrol Service, testified that

              he responded to the scene of an accident on Interstate 81. When he got there he observed a

              vehicle parked on the side of the road with some “scuffs” on the side of it, and a vehicle pulled

                                                                          
                            
                                Pursuant to Code § 17.1-413, this opinion is not designated for publication.
over in front of it. Rudd further testified that he observed appellant walking out into the lanes of

Interstate 81, “a little bit staggering” and “pacing back and forth.” Rudd got in between

appellant and the road to prevent appellant from being hit by a car, and stayed with appellant

until the police arrived.

        Trooper Matthew Hagy also testified. He stated that when he arrived on the scene he saw

two vehicles on the side of Interstate 81. The damage to one vehicle was on the driver’s side,

and the damage to the offending vehicle was on the passenger’s side. This damage corresponded

with a collision. Hagy stated that when he talked to appellant, appellant admitted to being the

driver of the offending vehicle. Hagy observed that appellant seemed unsteady on his feet while

they talked. Appellant also had glassy eyes and slurred speech. Hagy conducted five different

field sobriety tests on appellant, and appellant could not successfully complete any of them.

After the tests, Hagy read appellant his Miranda rights and placed him under arrest. Thereafter,

appellant told Hagy that he had taken Valium, Percocet, and Neurontin before the crash. Hagy

informed appellant of the implied consent law, and appellant agreed to have his blood drawn.

Hagy testified that he did not have a search warrant for appellant’s blood draw.

        Appellant’s counsel objected at this point, arguing that appellant did not waive his

Miranda rights, and thus, his blood should not have been drawn. The trial court overruled

appellant’s objection, finding that appellant freely, voluntarily, and intelligently acknowledged

his understanding of the Miranda warnings issued by Hagy, and then responded to Hagy’s

questions.

        Dr. James Kuhlman, a forensic toxicologist, testified about the laboratory testing of

appellant’s blood samples, and the certificate of analysis. During Kuhlman’s voir dire, outside

the presence of the jury, Kuhlman stated that when a blood test kit arrives at the laboratory, a

toxicologist receives it, and verifies that it is unopened. The toxicologist will then open the test

                                                - 2 - 
kit and begin to create a record by generating a laboratory accessioning number, which is entered

into the laboratory’s computer system. The certificate of analysis presented at trial included the

name of the toxicologist who opened the blood sample, in this case, Davis Blanchard. Kuhlman

testified that he did not directly oversee this process. However, Kuhlman stated that at the end of

the laboratory work, he goes back, retrieves the evidence, and looks at it to ensure that the

toxicologists did not make any mistakes.

       Kuhlman stated that Chad Harris performed the first test of appellant’s blood sample on

March 20, 2015. Harris performed an alcohol analysis, and no ethanol was detected. Harris also

conducted the next part of the testing process, called amino assay, on March 27, 2015. This

process allows toxicologists to test several samples at once, which eliminates any negative

samples. While Kuhlman did not observe Harris performing this process, he testified that he

knew that it was done correctly

               because the other procedure that we do has very rigid quality
               control criteria. There are positive samples, there are negative
               known samples, one with each one. We have criteria for -- in this
               particular cases the instrument is rating a visual absorbance; it has
               to be a certain concentration to be acceptable. It has to be between
               a certain range to be acceptable for us to call it negative and
               positive. You can’t physically do any of that. You load the
               sample in the instrument and a whole bunch of computer printouts
               . . . [u]nless you have all the data it’s not like you can change it.

Kuhlman further testified that he knew the blood sample that was tested belonged to appellant

because of the chain of custody. Kuhlman stated that if Harris did not follow the chain of

custody, he would know because two tests are run on each blood sample, and any discrepancies

would be caught.

       Kuhlman stated that his job as the examiner is to determine if the two sets of results

match. In this case, the results produced by the toxicologists showed that appellant tested

positive for two different types of drugs. One toxicologist did the Oxycodone analysis, and

                                                - 3 - 
another toxicologist did the Diazepam, Nordiazepam, Oxazepam, and Temazepam analysis.

Kuhlman stated that once he receives these results he does “what’s called an examination. I have

to inspect all of the data, and that is the printouts, the information that’s coming from all the

various instruments, check the chain of custody documentation, check to make sure all of the

quality control procedures were followed, because it’s all documented.” Kuhlman further

testified: “I’m the one that’s making those decisions determining it and then deciding how to

report it on the final [c]ertificate of [a]nalysis.” Kuhlman also testified that the Director of the

Department of Forensic Science (“DFS”) designated him to sign certificates of analysis.

        The laboratory uses quality control measures to determine whether toxicologists conduct

laboratory work according to protocol. Kuhlman testified that another part of his job as an

examiner is not only to ensure that the toxicologists follow all the quality controls, but also to

make certain that the report they submit coincides with the blood sample analyzed. Kuhlman

stated that his job in court is to testify to the data and results as provided in the certificate of

analysis.

        After the voir dire examination, appellant made a motion to suppress the certificate of

analysis. He argued that appellant was left with no one to cross-examine about when the

laboratory received appellant’s blood sample, and what condition it was in, because Kuhlman did

not actually handle that portion of the testing. Specifically, appellant argued that it is significant

that he could not cross-examine the necessary witnesses in his case and that this issue was

addressed by the Supreme Court of the United States in Bullcoming v. New Mexico, 564 U.S.

647 (2011). The Code explicitly states that a certificate of analysis must be signed by the

designee of the Director of DFS. Appellant stated that Kuhlman’s signature on the certificate of

analysis merely asserts that he is a DFS employee. According to appellant, the Commonwealth

also did not provide any documentation that the Director of DFS designated Kuhlman.

                                                  - 4 - 
        Additionally, appellant attempted to raise “one other objection” with respect to admission

of the certificate of analysis, stating as follows:

                I’m just raising this one, Judge, because it’s in front of the
                Supreme Court right now and I want to put it on the record -- and
                that was that the test was given by [i]mplied [c]onsent without a
                search warrant being issued under the [Schmerber] case. And as I
                said, I’m only raising that because it’s currently before the
                Supreme Court.

However, appellant did not identify the case that was in front of the Supreme Court by name. He

also did not state the argument, or arguments, before the Supreme Court in that case. At no time

in the trial court did appellant ever argue that his consent to have his blood drawn was

constitutionally invalid and had been coerced from him because he faced a criminal penalty if he

had refused under Virginia’s implied consent statute.

        The Commonwealth responded to appellant’s arguments, stating that with respect to the

designation issue, at the bottom of the certificate of analysis, by Kuhlman’s signature, it says

“this duty has been delegated to me by the Director of the Department of Forensic Science.”

Additionally, Kuhlman gave sworn testimony that the Director of DFS designated him to sign

certificates of analysis. As for the chain of custody issue, the Commonwealth argued that the

trial court should rely on Code § 19.2-187.01 which states:

                A report of analysis duly attested by the person performing such
                analysis or examination by any laboratory operated by the Division
                of Consolidated Laboratory Services, the Department of Forensic
                Science, or any of its regional laboratories shall be prima facie
                evidence in a criminal or civil proceeding as the custody of the
                material described therein from the time such material is received
                by an authorized agent of such laboratory until such material is
                released subsequent to such analysis or examination.

Kuhlman testified at trial, and he is the one ultimately responsible for the findings in the

certificate of analysis. He examines everything, and determines whether the findings of each

toxicologist are consistent with DFS’s quality control regulations.

                                                  - 5 - 
        The trial court overruled appellant’s motion, finding that the certificate of analysis

offered by the Commonwealth was in compliance with Code §§ 19.2-187, 18.2-268.7, and

19.2-187.1(B)(i). The trial court also found that Kuhlman reviewed the entire process of testing

appellant’s blood for drugs and that he used this as the basis for his analysis and opinion. The

trial court determined that the issues raised by appellant go to the weight of his analysis, and not

to the admissibility of the certificate of analysis.

        During Kuhlman’s direct examination, the trial court qualified him as an expert in the

field of forensic toxicology, as well as performance toxicology, a subset of forensic toxicology

focused on how drugs and/or alcohol affect a person’s performance or behavior. Kuhlman

testified that when he examined the blood sample, he could determine whether it contained any

drugs or alcohol. He found Diazepam (or Valium) at 1.4 milligrams per liter; Nordiazepam at

.57 milligrams per liter, Oxazepam at .015 milligrams per liter, and Temazepam at .028

milligrams per liter. Nordiazepam, Oxazepam, and Temazepam are all milder forms of

Diazepam, and occur as the body metabolizes Diazepam. Appellant’s blood sample also

contained Oxycodone at .28 milligrams per liter. Kuhlman stated that he would qualify 1.4

milligrams per liter of Diazepam as a high level. Kuhlman testified that the Oxycodone

contained in appellant’s blood,

                is not a low dose . . . . This would be the type of blood
                concentrations that you might expect in a person who has
                long-term chronic pain. I don’t know anything about [appellant]
                . . . . So this could be a high level, it could be a normal level for a
                patient. It’s not low for anyone, but it could be normal for him or
                it could be too much. I don’t know.

Kuhlman further testified that a person can experience side effects from medications like

Oxycodone or Diazepam, even if they are taking it at a prescribed dosage.

        Kuhlman then testified about the side effects of the drugs found in appellant’s system.

He stated that the side effects of Diazepam include: drowsiness, dizziness, poor concentration,
                                                  - 6 - 
poor hand-eye coordination, and a slow reaction time. Diazepam can also cause individuals to

have slurred speech and poor balance. The degree to which an individual exhibits these side

effects depends on the person and their experience with the drug. Kuhlman stated that the side

effects of Oxycodone include drowsiness and a lack of coordination. Kuhlman testified that the

side effects of Diazepam and Oxycodone can affect a person’s ability to operate a motor vehicle

because

                [o]perating a motor vehicle is very much a multitasking event . . . .
                When you introduce a depressant drug into that process it slows
                [down your reaction time]. So you’re not going to make a decision
                as quickly as you should. You’re not going to react as quickly as
                you should. You’re not going to anticipate the behavior of another
                vehicle or pedestrian there on the side. You’re not going to be able
                to perform as quickly. The degree and the more pronounced the
                depressant effects the more it’s going to affect your ability to drive
                safely.

Kuhlman further testified that staggering or a lack of balance, lane drifting, and slurred speech

are consistent with the side effects of Diazepam and Oxycodone. However, Kuhlman also stated

that he does not know the specific effects of the drugs on appellant, and he could not say that

Diazepam and Oxycodone would have prevented appellant from driving safely.

        At the close of the Commonwealth’s case-in-chief, appellant made a motion to strike the

evidence. He argued that the Commonwealth did not prove that appellant was under the

influence of drugs at the time of the offense because Kuhlman testified that he did not know

appellant’s tolerance for Diazepam and Oxycodone. Appellant stated that the Commonwealth

did not present any evidence about the accident, which is necessary to know whether appellant

could safely operate a motor vehicle. Appellant also argued that the Commonwealth did not

provide any evidence that the drugs found in appellant’s system were self-administered.

        The trial court denied appellant’s motion, stating that the issues appellant argued were

issues for the jury.

                                                - 7 - 
       Appellant did not present any evidence. The jury found appellant guilty of driving under

the influence of drugs, second offense in ten years. After the jury issued its verdict, appellant

made a motion to set aside the guilty verdict based on the arguments previously presented in his

motion to strike. The trial court overruled the motion citing its previous rulings. The jury

recommended a sentence of twelve months in jail. On June 9, 2016, the trial court entered an

order accepting the jury’s recommendation, and sentencing appellant to twelve months in jail.

This appeal followed.

                                             ANALYSIS

I. Appellant Waived His Objection to the Trial Court’s Admission of the Certificate of Analysis
          Based on the Fact that the Commonwealth Did Not Have a Search Warrant.

       Appellant argues that the trial court erred in denying his motion to suppress the certificate

of analysis because the Commonwealth did not have a search warrant to obtain appellant’s blood

in violation of the Fourth Amendment. Appellant states that a search warrant is necessary

because he would be exposed to criminal penalties if he refused to have his blood drawn,

pursuant to Code § 18.2-268.3. Appellant further contends that, under the Supreme Court’s

decision in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), which was decided after his trial,

the potential criminal penalty negates his consent, invalidating the blood draw and the

subsequent chemical analysis. The Commonwealth argues that appellant did not preserve this

argument, and it is therefore barred from consideration by Rule 5A:18. We agree with the

Commonwealth.

       Rule 5A:18 provides, in pertinent part, that “[n]o ruling of the trial court . . . will be

considered as a basis for reversal unless an objection was stated with reasonable certainty at the

time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the

ends of justice.” Applying Rule 5A:18, we have consistently held that we “will not consider an

argument on appeal which was not presented to the trial court.” Ohree v. Commonwealth, 26
                                                 - 8 - 
Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). “The same argument must have been raised,

with specificity, at trial before it can be considered on appeal.” Correll v. Commonwealth, 42

Va. App. 311, 314, 591 S.E.2d 712, 719 (2004). “Rule 5A:18 requires a litigant to make timely

and specific objections so that the trial court has ‘an opportunity to rule intelligently on the issues

presented, thus avoiding unnecessary appeals and reversals.’” Brown v. Commonwealth, 279 Va.

210, 217, 688 S.E.2d 185, 189 (2010) (quoting West v. Commonwealth, 43 Va. App. 327, 337, 597

S.E.2d 274, 278 (2004)).

        In this case, appellant never argued, either explicitly or implicitly, at the trial court that a

search warrant was necessary for his blood draw because the specter of a criminal penalty for

refusal invalidated his consent. When appellant made a motion to suppress the certificate of

analysis his argument focused mainly on the fact that he could not cross-examine every toxicologist

whose testing affected the results in the certificate of analysis. The only part of appellant’s

argument that did not involve the Confrontation Clause occurred when appellant stated: “the test

was given by [i]mplied [c]onsent without a search warrant being issued under the [Schmerber]

case. And as I said, I’m only raising that because it’s currently before the Supreme Court.” He

never mentioned the case, Birchfield, by name, he merely stated that a relevant case was

“currently before the Supreme Court.” Birchfield actually involves three different petitioners

whose appeals were consolidated for consideration into one case. 136 S. Ct. at 2186. Birchfield

deals with implied consent in various scenarios, including blood tests, breath tests, civil

penalties, and criminal penalties. Id. at 2183-86. Thus, even if appellant’s oblique reference to a

case “currently before the Supreme Court” were deemed sufficient to identify Birchfield,

appellant’s argument in the trial court does not specifically identify which part of Birchfield

applies to his case.




                                                  - 9 - 
       Appellant also argues, incorrectly, that he can raise this issue for the first time on appeal

because it concerns a substantive constitutional right. The Supreme Court of Virginia has held,

               [i]f a criminal defendant fails to preserve an issue in the trial court,
               he can waive claimed violations of his constitutional right to be
               free of unreasonable searches and seizures under the Fourth
               Amendment . . . . Procedural default principles, including
               Rules 5:25 and 5A:18, still apply, as do traditional finality
               principles protecting judgments no longer within the trial court’s
               active jurisdiction.

Jones v. Commonwealth, 293 Va. 29, 47-48, 795 S.E.2d 705, 716 (2017). In this case, appellant

did not raise a timely objection to the certificate of analysis based on the lack of a search warrant

for the blood draw. As such, the trial court did not have an opportunity to rule on this objection,

and it was not preserved. Because appellant failed to raise this specific argument in the trial

court, we will not consider it now on appeal.

II. The Trial Court’s Admission of the Certificate of Analysis If in Error, Was in Fact Harmless.

       Appellant argues that it was constitutional error to allow the certificate of analysis into

evidence because appellant was deprived of his right to confront witnesses against him, in

violation of the Confrontation Clause. Assuming that the trial court erred in admitting the

certificate of analysis into evidence, this error was harmless.

       This Court has held that “[c]onstitutional error . . . is harmless only when the reviewing

court is “able to declare a belief that it was harmless beyond a reasonable doubt.” Lavinder v.

Commonwealth, 12 Va. App. 1003, 1006, 407 S.E.2d 910, 911 (1991) (quoting Chapman v.

California, 386 U.S. 18, 24 (1967)). This Court further held:

               Use of the “beyond a reasonable doubt” standard, while an
               appropriate measure of confidence in fact finding, is an unusual
               device to use in deciding questions of law. Like “preponderance of
               the evidence” and “clear and convincing evidence,” “beyond a
               reasonable doubt” is a relative and subjective standard suitable for
               measuring the probability of the occurrence of a past event. But, in
               determining if an error is harmless, a reviewing court does not
               decide the probability of the occurrence of a past event, i.e. if, in
                                                - 10 - 
               fact, the defendant committed the crime charged. It determines,
               instead, whether, as a matter of law, this decision by the fact finder
               was affected by the error. If so, the error is not harmless; if not,
               the error is harmless.

Id. As such, error, if any, was harmless in this case.

       Code § 18.2-266(iii) states that in order to convict appellant of driving under the

influence, the Commonwealth must prove that appellant drove “under the influence of any

narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any

combination of such drugs, to a degree which impairs his ability to drive or operate any motor

vehicle.” It is not contested in this case that appellant was driving.

       The Commonwealth proved appellant’s impairment through the testimony of Rudd and

Hagy. Rudd testified that when he arrived at the scene of the accident on March 12, 2015,

appellant was staggering and pacing near Interstate 81. Rudd also said that he stood between

appellant and the road because he was afraid that appellant would wander into the lanes of traffic

and get hit by a passing car. Hagy testified that when he arrived on the scene, appellant admitted

that he had been driving. Hagy also observed that the two cars involved had damage consistent

with two cars colliding. Hagy testified that appellant had glassy eyes, slurred speech, and

seemed unsteady on his feet. He also put appellant through five field sobriety tests, and

appellant failed to complete any of them. After Hagy read appellant his Miranda rights,

appellant admitted to Hagy that he had taken Valium, Percocet, and Neurontin. This evidence is

sufficient to show that appellant was impaired.

       Appellant argues that any error in admitting the certificate of analysis was not harmless

because its presence allowed Kuhlman to testify as to the impact of the amount of substance in

appellant’s blood, which may have affected his ability to drive. However, Kuhlman stated that

he did not know the specific side effects of Diazepam and Oxycodone on appellant, thus, he

could not testify as to whether appellant could safely drive with the drug levels found in his
                                                - 11 - 
system. Kuhlman did testify about the side effects of the drugs found in appellant’s blood

sample, including drowsiness, dizziness, poor concentration, slurred speech, and a slow reaction

time. These side effects are consistent with appellant’s physical appearance and behavior

observed by Rudd and Hagy at the scene of the accident.

       The evidence without the certificate of analysis was sufficient to prove that appellant was

driving under the influence. Appellant admitted to taking Valium, Percocet, and Neurontin. He

also exhibited the side effects of these drugs. Thus, we decline to address the merits of this

assignment of error and find that any error in this case was harmless beyond a reasonable doubt.

  III. The Trial Court Did Not Err in Denying Appellant’s Motion to Strike the Evidence and
                               Motion to Set Aside the Verdict.

       Appellant argues that the trial court erred because the evidence in this case was

insufficient to prove that appellant was guilty beyond a reasonable doubt of driving under the

influence of drugs, second offense in ten years. Thus, he contends that the trial court should

have granted his motion to strike the evidence and his motion to set aside the jury verdict. We

disagree.

       When considering the sufficiency of the evidence on appeal in a criminal case, this Court

views the evidence “in the light most favorable to the Commonwealth and give[s] it all

reasonable inferences fairly deducible therefrom.” Higginbotham v. Commonwealth, 216 Va.

349, 352, 218 S.E.2d 534, 537 (1975). On review, this Court does not substitute its own

judgment for that of the trier of fact. See Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d

218, 220 (1992). The trial court’s judgment “will not be set aside unless it appears from the

evidence that the judgment is plainly wrong or without evidence to support it.” Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

       Appellant relies on the case of Clemmer v. Commonwealth, 208 Va. 661, 159 S.E.2d 664

(1968), to argue that the Commonwealth provided no evidence that appellant was driving under
                                               - 12 - 
the influence of drugs. However, Clemmer can be distinguished from the present case because

in Clemmer there was no evidence that the appellant operated his vehicle under the influence of

alcohol, or some self-administered drug, despite his bizarre behavior. Id. at 666, 159 S.E.2d at

667. In this case, a Safety Service Patrol officer, who had been dispatched to an accident, found

appellant on the side of the road. Rudd observed appellant staggering and pacing by the road,

and even had to get between appellant and the interstate because he was afraid appellant would

walk into a lane, and get hit by a passing car. When Trooper Hagy arrived on the scene he

testified that appellant admitted that he had been driving the offending vehicle. Hagy also stated

that appellant seemed unsteady on his feet, and had glassy eyes and slurred speech. Hagy put

appellant through five field sobriety tests, all of which, appellant failed.

       The Supreme Court of Virginia explained that Clemmer stands for the proposition “that

there can be no conviction under the statute unless there was evidence tending to establish the

agency responsible for the erratic behavior of the accused.” Miller v. Commonwealth, 214 Va.

689, 690, 204 S.E.2d 268, 269 (1974). After Hagy arrested appellant and read him his Miranda

rights, appellant admitted that he took Valium, Percocet, and Neurontin before the crash. This

admission is consistent with the drugs found in appellant’s system. Also, appellant’s behavior,

observed by Hagy and Rudd, is consistent with the side effects that Kuhlman mentioned may

accompany Diazepam and Oxycodone. These side effects include slow reaction times, slurred

speech, dizziness, and drowsiness. It is reasonable to believe in this case that the drugs appellant

ingested caused his impairment. Based on all the evidence, the trial court’s decision in this case

was not plainly wrong, and was supported by the evidence presented at trial.

       Thus, the decision of the trial court is affirmed.




                                                - 13 - 
                                           CONCLUSION

       We find that we do not need to address the merits of the first two assignments of error

because appellant did not properly preserve for appeal his argument that the certificate of

analysis should not be admitted into evidence because the Commonwealth did not have a search

warrant to draw his blood. We further find that any error by the trial court in admitting the

certificate of analysis into evidence was harmless. We hold that the trial court did not err when it

denied appellant’s motion to strike and motion to set aside the verdict. Thus, appellant’s

conviction of driving while under the influence of drugs, second offense within ten years, in

violation of Code §§ 18.2-266 and 18.2-270, is affirmed.

                                                                                         Affirmed.




                                               - 14 - 
