                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, * Judge Elder and
          Senior Judge Duff
Argued at Alexandria, Virginia


ISAAC AMAYA-PORTILLO, S/K/A
 ISAAC DEJESUS AMAYA-PORTILLO
                                            MEMORANDUM OPINION**
v.        Record No. 2559-96-4            BY JUDGE CHARLES H. DUFF
                                              DECEMBER 9, 1997
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                     William T. Newman, Jr., Judge

             Sean D. O'Malie (Pelton, Balland, Young,
             Demsky, Baskin & O'Malie, P.C., on brief),
             for appellant.

             Eugene Murphy, Assistant Attorney General
             (Richard Cullen, Attorney General, on brief),
             for appellee.


     In a bench trial, Isaac Amaya-Portillo (appellant) was

convicted in the Circuit Court of Arlington County of driving

while under the influence of alcohol (DUI).    On appeal, appellant

argues that the trial court erred in admitting the Commonwealth's

certificate of analysis pertaining to a blood sample obtained

from him on the night of his arrest.    Finding no error, we affirm

appellant's conviction.

     "On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom."     Maynard v. Commonwealth,
     *
      On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
     **
      Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
11 Va. App. 437, 439, 399 S.E.2d 635, 637 (1990) (en banc).

     So viewed, the evidence demonstrated that on August 13,

1995, appellant was arrested for DUI following an automobile

accident.    After being advised of Virginia's implied consent law,

appellant elected a blood test.

     A registered nurse withdrew two vials of blood from

appellant, sealed and boxed the vials individually, and gave the

boxes to Officer Carolyn Jackson-Clark, the officer who arrested

appellant.   Neither of the vials was cracked or damaged when the

nurse placed them inside the boxes.     Officer Jackson-Clark put

the sealed boxes in the refrigerator in the property unit of the

police station later in her shift.      She noticed nothing unusual

about the boxes at that time.
     Preston Johnson, a property clerk for the Arlington County

Police Department, removed the boxes containing appellant's blood

samples from the refrigerator on August 17, 1995.     The boxes were

sealed and did not appear to be leaking.     Johnson attached

property control numbers to the boxes and put them in the

refrigerator in the evidence room.

     On August 18, 1995, Johnson took the boxes from the

refrigerator, placed postage upon them, and put the two packages

in a mailbox.   Johnson mailed one of the boxes to Valley Medical

Laboratories, which appellant had selected on the night of his

arrest to conduct an independent analysis of the second vial of

blood withdrawn from him.   The other box was mailed to the



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Division of Forensic Science.   The boxes showed no signs of

leakage when Johnson mailed them.

     The certificate of analysis produced by Valley Medical

Laboratories indicated that the laboratory had been unable to

test the blood sample contained in the box because "the vial when

received was smashed and blood had leaked out."    The certificate

of analysis produced by the Division of Forensic Science

regarding the other blood sample indicated that appellant's blood

alcohol content was 0.21 percent.     The trial judge admitted the

certificate of analysis produced by the Division of Forensic

Science into evidence and found appellant guilty of DUI.
     On appeal, appellant contends that because Valley Medical

Laboratories was unable to test the second vial of blood due to

the condition in which it arrived there, the Commonwealth's

certificate of analysis regarding the other sample was

inadmissible and the Commonwealth should have been foreclosed

from prosecuting him for DUI.   When a blood test is conducted

following an arrest for DUI, Code § 18.2-268.6 requires that the

blood taken from the accused
          be divided between two containers provided by
          the Division [of Forensic Science], and the
          containers shall be sealed to prevent
          tampering with the vial. The arresting or
          accompanying officer shall take possession of
          the two containers as soon as the vials are
          placed in such containers and sealed, and
          shall promptly transport or mail one of the
          containers to the Division. Immediately
          after taking possession of the second
          container, the officer shall give to the
          accused a form provided by the Division which
          sets forth the procedure to obtain an



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          independent analysis of the blood in the
          second container, and a list of the names and
          addresses of laboratories approved by the
          Division. The form shall contain a space for
          the accused or his counsel to direct the
          officer possessing the second container to
          forward it to an approved laboratory for
          analysis, if desired. If the accused directs
          the officer in writing on the form to forward
          the second container to an approved
          laboratory of the accused's choice, the
          officer shall do so.

                  *   *    *    *     *   *    *

               The contents of the second container
          shall be transmitted, tested and admitted in
          evidence in the same manner and in accordance
          with procedures established for the sample
          sent to the Division . . . .

Code § 18.2-268.11 provides:
               The steps set forth in §§ 18.2-268.2
          through 18.2-268.9 relating to taking,
          handling, identifying, and disposing of blood
          or breath samples are procedural and not
          substantive. Substantial compliance shall be
          sufficient. Failure to comply with any 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 with all the
          evidence in the case; however, the defendant
          shall have the right to introduce evidence on
          his own behalf to show noncompliance with the
          aforesaid procedures or any part thereof, and
          that as a result his rights were prejudiced.


"'[W]hen the Commonwealth cannot prove that it substantially

complied with the statutory procedures referred to in Code

[§ 18.2-268.11], the Commonwealth is foreclosed from

prosecution.'"   Shoemaker v. Commonwealth, 18 Va. App. 61, 65,

441 S.E.2d 354, 356 (1994) (quoting Kemp v. Commonwealth, 16 Va.



                                -4-
App. 360, 366, 429 S.E.2d 875, 879 (1993)).

     In Kemp, the Commonwealth neither accounted for the

whereabouts of the defendant's blood sample that he had requested

be sent to an independent laboratory, nor produced a certificate

of analysis pertaining to that sample. We held that
          when an accused asks that his blood sample be
          sent to an independent laboratory for testing
          and an independent analysis is not available
          at trial, the Commonwealth has the burden to
          explain the absence of independent test
          results and show that it substantially
          complied with the steps relating to the
          taking, handling, identification, and
          disposition of defendant's blood and/or
          breath samples. The Commonwealth must prove
          that the unavailability of the independent
          test results is not due to unreasonable
          conduct by the Commonwealth or its agents.

Kemp, 16 Va. App. at 365, 429 S.E.2d at 878.

     In Shoemaker, the arresting officer provided the defendant

with an outdated list from which to choose a laboratory to

conduct the independent analysis of his blood.   At the time of

the defendant's arrest, the laboratory he selected to perform the

independent analysis was no longer approved to perform the test.

Consequently, the laboratory returned the sample of appellant's

blood unopened and marked "refused."   The Commonwealth took no

steps to resubmit the sample to another laboratory or to

otherwise cure the problem caused by the officer having provided

the defendant with an outdated list of laboratories.   See

Shoemaker, 18 Va. App. at 62, 441 S.E.2d at 355.   Upon these

facts, we concluded that the evidence failed to show that the



                               -5-
Commonwealth had substantially complied with the statutory

requirements.    See id. at 65, 441 S.E.2d at 356.

     In this case, the Commonwealth produced uncontradicted

evidence that the vials were in good condition when received by

Officer Jackson-Clark.    The boxes containing the vials were

maintained in a refrigerator by Johnson.    The boxes remained

sealed and were not leaking when Johnson mailed them to the

respective laboratories, as Code § 18.2-268.6 specifically

permits. 1   Thus, there was no indication that the boxes were

mishandled prior to mailing or that the Commonwealth deviated

from the procedures mandated by Code § 18.2-268.6.

     The statutes relating to the taking and handling of blood

samples do not provide that the postal workers involved in

transmitting blood samples to the laboratories necessarily become

agents of the Commonwealth, for whose unreasonable conduct the

prosecution must account.    We will not presume the existence of

such an agency relationship.    See State Farm Mut. Auto. Ins. Co.
v. Weisman, 247 Va. 199, 203, 441 S.E.2d 16, 19 (1994).    In fact,

after depositing the boxes in good condition in the mail, the

Commonwealth had no further control over the manner of their

delivery to the laboratories.    Although postal service clerks

generally are presumed to have properly discharged their official

duties, see Robertson v. Commonwealth, 12 Va. App. 854, 856-57,
     1
      Johnson could not have viewed the vials and ensured their
good condition without unsealing the boxes and thereby violating
the procedure set forth in Code § 18.2-268.6.



                                 -6-
406 S.E.2d 417, 418-19 (1991), the condition in which the vial

arrived at Valley Medical Laboratories tended to rebut that

presumption of regularity in this instance.

     The Commonwealth's evidence demonstrated that it

substantially complied with the statutory procedures relating to

the taking and handling of blood samples, and sufficiently

explained the unavailability of the independent blood test.

Therefore, the trial judge did not err in admitting the

Commonwealth's certificate of analysis and in finding appellant

guilty of DUI.

                                                          Affirmed.




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