                    COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Overton and Senior Judge Duff
Argued at Alexandria, Virginia


STEVEN L. WHIBLEY
                                          MEMORANDUM OPINION * BY
v.   Record No. 1515-97-4                 JUDGE CHARLES H. DUFF
                                             OCTOBER 27, 1998
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                     Alfred D. Swersky, Judge
          Dale Edwin Sanders (Sanders & Associates, on
          brief), for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.



     Steven L. Whibley appeals his conviction for driving while

intoxicated.   He contends that the trial judge erred in admitting

into evidence a certificate of breath alcohol analysis.     We

disagree and affirm.

                                 I.

     "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."     Blain v.

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)

(citation omitted).    "On appeal, we review the evidence in the

light most favorable to the Commonwealth, granting to it all

reasonable inferences fairly deducible therefrom."     Martin v.

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

     So viewed, the evidence proved that, on January 5, 1997,

Officer Gerald Ford stopped appellant's car and arrested him for

driving while intoxicated.   Within two hours of the arrest, Ford

advised appellant of the implied consent law.   Ford told

appellant that "the Virginia consent law requires [appellant] to

take a breath test . . . [that] he is required to take a breath

test by driving on Virginia highways."   Although Ford could not

recall verbatim what he told appellant, he testified that he

"read the implied consent" law "from a card" that was issued by

the police department.   Ford averred that he "always" reads "the

implied consent . . . from the card."    Ford was unable to produce

the card at trial.
     Appellant objected to the admission of the certificate of

analysis because there was "[in]adequate evidence that an

accurate version of the implied consent was read" to appellant.

Appellant argued that Ford's coercive manner of telling appellant

he had to take the test while he was under arrest and Ford's

failure to advise appellant of the consequences for refusing to

submit to a breath test invalidated his consent.   Appellant

contends that he has the power to refuse such a test, and without

being fully informed of the implied consent law, including the

consequences for refusing, he was unaware that he could refuse

the test.   Accordingly, argues appellant, he was unable to give

"[a]ctual, voluntary consent."    Appellant presented no evidence.



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     The trial judge took the matter under advisement.       By

opinion letter, he admitted the certificate of analysis, denied

appellant's motion to strike, and found appellant guilty of

driving while intoxicated.

                               II.
               A. Any person . . . who operates a
          motor vehicle upon a highway . . . 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 . . . content of his blood, if he
          is arrested for violation § 18.2-266 . . .
          within two hours of the alleged offense.
               B.    Any person so arrested for a

          violation of § 18.2-266 (i) or (ii) or both,

          . . . shall submit to a breath test.      If the

          breath test is unavailable or the person is

          physically unable to submit to the breath

          test, a blood test shall be given.   The

          accused shall, prior to the administration of

          the test, be advised by the person

          administering the test that he has the right

          to observe the process of analysis and to see

          the blood-alcohol reading on the equipment

          used to perform the breath test.

Code § 18.2-268.2.

     In Caldwell v. Commonwealth, 205 Va. 277, 136 S.E.2d 798

(1964), the defendant argued "that the trooper failed to advise

him 'that he had the right to refuse to take [a] blood test.'"


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Id. at 280, 136 S.E.2d at 801.    The Supreme Court held as

follows:
           Under the [implied consent] statute any
           person who operates a motor vehicle upon a
           public highway in this Commonwealth shall be
           deemed to have consented to, and shall be
           entitled to, have a sample of his blood taken
           for a chemical analysis to determine its
           alcoholic content when arrested for operating
           a motor vehicle while under the influence of
           alcohol. In Walton v. City of Roanoke, 204
           Va. 678, 133 S.E.2d 315 [(1963)], we said
           that "the defendant was not compelled under
           § 18.1-55 to submit to the blood test. He
           had a choice of either allowing the test to
           be made or refusing it." We adhere to that
           holding.   However, the statute does require
           an accused to submit to a blood test in order
           to avoid prosecution for refusing to take it,
           which may result in the suspension of his
           operator's license if such refusal is found
           to be unreasonable. He has the power to
           refuse to submit to the test but no right to
           refuse it. Since there exists no "right to
           refuse" to submit to a blood test, the
           trooper was without authority to advise
           defendant that he had such a right.
           Furthermore, defendant orally consented to
           submit to the test so that it was not
           incumbent upon the trooper to advise him of
           the consequences if he refused. Had
           defendant refused to submit to the test, it
           then would have been the duty of the trooper
           to advise the accused that "refusal to do so
           constitutes grounds for the revocation of the
           privilege of operating a motor vehicle upon
           the highways of this State".


Id. at 281, 136 S.E.2d at 801 (applying Code § 18.1-55, the

former implied consent statute) (emphases added).
          The consent to submit to a blood or breath
          test, granted when a person operates a motor
          vehicle upon the highways, "is not a
          qualified consent and it is not a conditional
          consent, and therefore there can be no
          qualified refusal or conditional refusal to
          take the test." The mere fact that under the



                                 - 4 -
             statute "an accused is afforded an
             opportunity to establish the reasonableness
             of his refusal does not operate to dilute the
             consent previously given, or convert that
             consent into a qualified or conditional one."
              Illustrative of a refusal that would be
             deemed reasonable is when "a person's health
             would be endangered by the withdrawal of
             blood."


Cash v. Commonwealth, 251 Va. 46, 49-50, 466 S.E.2d 736, 738

(1996) (quoting Deaner v. Commonwealth, 210 Va. 285, 292-93, 170

S.E.2d 199, 204 (1969)).
        Appellant does not contend that his arrest was made without

probable cause.    Moreover, the evidence established that he was

arrested within two hours of the offense, therefore, he was

deemed to have consented to a breath test under the implied

consent law.

        Code § 18.2-268.3 allows a person accused of driving while

intoxicated to refuse to take a breath or blood test.    Even if

Ford failed to advise appellant of the consequences of refusal,

appellant had no right to refuse to take a required blood alcohol

test.     See Caldwell, 205 Va. at 281, 136 S.E.2d at 801.

Moreover, because appellant did not refuse to take the test, Ford

was not required to inform him of the consequences pursuant to

Code § 18.2-268.3.    After being advised that drivers on Virginia

highways are required to take a breath test, appellant consented

to take the test.    Therefore, Code § 18.2-268.3 was not

implicated, and Ford was not required to inform appellant that he

could refuse the test.




                                 - 5 -
     Moreover, Ford substantially complied with the implied

consent statute.
          The steps set forth in [Code] §§ 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, . . . 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




                              - 6 -
           procedures or any part thereof, and that as a
           result his rights were prejudiced.


Code § 18.2-268.11.

     The burden is on the Commonwealth to show that it

substantially complied with the requirements of the statute.      See

Kemp v. Commonwealth, 16 Va. App. 360, 365, 429 S.E.2d 875, 878

(1993).   Ford testified that he advised appellant of Virginia's

implied consent law from a preprinted card issued by the police

department.   Therefore, at a minimum, the Commonwealth

established that Ford substantially complied with the implied

consent statute.
     For the foregoing reasons, the trial judge did not err in

admitting the certificate of breath alcohol analysis.

Accordingly, we affirm the decision of the trial judge.

                                                           Affirmed.




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