                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Humphreys, Petty and Chafin
            Argued at Richmond, Virginia
PUBLISHED




            RYAN TAYLOR
                                                                                OPINION BY
            v.     Record No. 0719-18-2                                   JUDGE WILLIAM G. PETTY
                                                                               APRIL 16, 2019
            COMMONWEALTH OF VIRGINIA


                            FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                                       Frederick G. Rockwell, III, Judge

                           Jaclyn Murphy Goad (Gordon, Dodson, Gordon & Rowlett, on
                           brief), for appellant.

                           Alice Anne Lloyd, Assistant Attorney General (Mark R. Herring,
                           Attorney General, on brief), for appellee.


                   Ryan Taylor was convicted of driving under the influence, third offense, in violation of

            Code § 18.2-266. Before trial, Taylor filed a motion to suppress the results of a warrantless

            seizure of a sample of his blood, referred to in the trial court as the blood draw. The motion was

            denied, and Taylor was subsequently convicted. On appeal, Taylor first argues that the trial

            court erred in denying his motion to suppress the warrantless blood draw. Secondly, Taylor

            argues that there was insufficient evidence to convict him of driving under the influence, third

            offense. For the following reasons, we affirm.

                                                      BACKGROUND

                   We view the facts in the light most favorable to the prevailing party below, granting to it

            the benefit of any reasonable inferences; we review issues of law de novo. Hall v.

            Commonwealth, 55 Va. App. 451, 453 (2009).
       Trooper William Boelt of the Virginia State Police was traveling southbound on

Interstate 95 in Chesterfield County. The speed limit on that portion of Interstate 95 was 60

miles per hour, and the trooper was passed by a car traveling at 82 miles per hour. Trooper Boelt

initiated a stop of the car; Taylor was the driver. Trooper Boelt noticed the smell of alcohol and

marijuana coming from the car. Taylor admitted that he had been drinking and smoking

marijuana “earlier.” Trooper Boelt asked Taylor to step out of the vehicle and perform field

sobriety tests. Taylor agreed and, as a result of his performance, was arrested for driving under

the influence (DUI).

       Because Taylor admitted to using both alcohol and marijuana, Trooper Boelt transported

Taylor to the hospital for a blood draw. At the hospital, Trooper Boelt “read [Taylor] implied

consent” from a card. Although the card was not admitted into evidence, Trooper Boelt agreed

with defense counsel on cross-examination that he “informed [Taylor] that he could receive

some sanction, some criminal sanction, if he did not submit to the blood draw.” Taylor stated

that he understood implied consent and based on that he agreed to allow a sample of his blood to

be withdrawn.

       After Taylor’s blood was drawn, it was transported to the Department of Forensic

Science for analysis. The certificate of analysis issued after the examination of the sample

reflected a blood alcohol content (BAC) of .128% by weight by volume. At the time of the

offense, Taylor had previously been convicted and sentenced for two DUIs.

       Taylor filed a motion to suppress the results of the blood sample, alleging that a search

warrant was required to obtain the sample and that any consent he gave was obtained by

unconstitutional coercion. The trial court denied that motion, and the case proceeded to trial,

where the trial court found Taylor guilty of DUI, third offense.




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                                            ANALYSIS

                                      1. Motion to Suppress

       Taylor argues that the results of the warrantless blood draw should have been suppressed

because the United States Supreme Court’s decision in Birchfield v. North Dakota, 136 S. Ct.

2160 (2016), prohibits warrantless blood draws incident to arrest, and Taylor did not voluntarily

consent to the blood draw. We disagree.

       When reviewing a denial of a motion to suppress evidence, an appellate court considers

the evidence in the light most favorable to the Commonwealth and “will accord the

Commonwealth the benefit of all reasonable inferences fairly deducible from that evidence.”

Sidney v. Commonwealth, 280 Va. 517, 520 (2010). The defendant has the burden of showing

that even when the evidence is reviewed in that light, denying the motion to suppress was

reversible error. Id. at 522. We review de novo the trial court’s application of the law to the

particular facts of the case. Glenn v. Commonwealth, 275 Va. 123, 130 (2008).

       At the time of Taylor’s arrest in this case, September 8, 2015, the law in Virginia was that

               [a]ny person, whether licensed by Virginia or not, who operates a
               motor vehicle upon a highway . . . 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[.]

Code § 18.2-268.2. Unreasonable refusal to submit to a blood or breath test under Code

§ 18.2-268.2 resulted in a violation of Code § 18.2-268.3. A first offense for violation of Code

§ 18.2-268.3 resulted in a civil penalty of a one-year license suspension, but subsequent offenses

resulted in conviction of a criminal offense and license suspension. Code § 18.2-268.3. The

Virginia Supreme Court has consistently held that this statute passes constitutional muster. See




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Shin v. Commonwealth, 294 Va. 517, 529-30 (2017); Walton v. City of Roanoke, 204 Va. 678,

683-84 (1963).

       In Birchfield, the United States Supreme Court held, among other things, that “motorists

cannot be deemed to have consented to submit to a blood test on pain of committing a criminal

offense.”1 136 S. Ct. at 2186. Accordingly, warrantless blood draws incident to arrest under an

implied consent statute, which authorize criminal penalties upon refusal, violated the Fourth

Amendment when there is no other exception to the warrant requirement such as exigency. Id.

In response to the Court’s ruling in Birchfield, the General Assembly of Virginia reenacted Code

§ 18.2-268.3 on March 16, 2017 to remove criminal penalties for unreasonable refusal.

       On appeal in this case, Taylor argues that Birchfield required the trial court to grant his

motion to suppress. In response, the Commonwealth argues Trooper Boelt acted in good faith

reliance on well-established precedent in obtaining a blood sample from Taylor. As such, the

exclusionary rule does not apply. We agree with the Commonwealth.




       1
          In Birchfield, the United States Supreme Court actually considered three consolidated
cases involving implied consent statutes that imposed criminal penalties on an arrested driver
who refused to consent to testing. Birchfield, 136 S. Ct. at 2170-73. The three consolidated
cases involved: (1) a driver prosecuted for refusing to submit to a breath test; (2) a driver
prosecuted for refusing to submit to a blood test; and (3) a driver who consented to a blood test
after being warned of criminal sanctions for test refusal and whose license was administratively
suspended based on the blood test results. Id. at 2170-72. The Supreme Court held that the
driver who refused to submit to a warrantless breath test could be criminally prosecuted for his
refusal. Id. at 2186. The Court reversed the conviction of the driver prosecuted for refusing to
consent to a blood test. Id. With respect to the driver on whom, like here, administrative
sanctions were imposed after he consented to a blood test, the Court remanded the case for
consideration of whether the driver’s consent was voluntary, since the state court’s ruling that the
consent was voluntary was based on the erroneous assumption that the state could permissibly
compel both blood and breath tests. Id. We note that on remand the state court declined to
consider whether the consent was coerced. Beylund v. Levi, 889 N.W.2d 907, 917 (N.D.)
(concluding specific statutory procedure for administrative license proceedings and the civil
nature of those proceedings did not require exclusion of the results of the blood tests in the
administrative proceedings), reh’g denied (Mar. 30, 2017). Thus, the issue presented here was
not expressly decided by Birchfield.
                                                -4-
       This Court has “consistently held that when a law enforcement officer relies in good faith

upon the constitutional standards in existence at that time, the exclusionary rule will not be

implemented ex post facto.” Reed v. Commonwealth, 69 Va. App. 332, 340 (2018). It is

well-settled that “[a]n officer who conducts a search in reliance on binding appellate precedent

does no more than ‘ac[t] as a reasonable officer would and should act’ under the circumstances.

Davis v. United States, 564 U.S. 229, 241 (2011) (alteration in original) (quoting United States v.

Leon, 468 U.S. 897, 920 (1984)). “The deterrent effect of exclusion in such a case can only be to

discourage the officer from ‘do[ing] his duty.’” Id. (alteration in original) (quoting Leon, 468

U.S. at 920). See also United States v. Peltier, 422 U.S. 531, 537 (1975) (“[I]f the law

enforcement officers reasonably believed in good faith that evidence they had seized was

admissible at trial, the imperative of judicial integrity is not offended by the introduction into

evidence of that material even if decisions subsequent to the search or seizure have broadened

the exclusionary rule to encompass evidence seized in that manner.” (internal quotation marks

omitted)).

               The deterrent purpose of the exclusionary rule necessarily assumes
               that the police have engaged in willful, or at the very least
               negligent, conduct which has deprived the defendant of some right.
               By refusing to admit evidence gained as a result of such conduct,
               the courts hope to instill in those particular investigating officers,
               or in their future counterparts, a greater degree of care toward the
               rights of an accused. Where the official action was pursued in
               complete good faith, however, the deterrence rationale loses much
               of its force.

Id. at 538-39 (quoting Michigan v. Tucker, 417 U.S. 433, 447 (1974)). “[T]he inquiry must be

focused on the ‘flagrancy of the police misconduct’ at issue” and employ the “last resort”

remedy of exclusion only when necessary “to deter deliberate, reckless, or grossly negligent

conduct, or in some circumstances recurring or systemic negligence.” Collins v.

Commonwealth, ___ Va. ___, ___ (Mar. 28, 2019) (first quoting Davis v. United States, 564

                                                 -5-
U.S. 229, 238 (2011) (citation omitted); then quoting Herring v. United States, 555 U.S. 135,

140, 144 (2009) (citation omitted)). See also Heien v. North Carolina, 135 S. Ct. 530, 540

(2014) (holding that officer’s reasonable mistake of law did not require suppression of evidence).

       At the time Trooper Boelt arrested Taylor, the law in Virginia was that Taylor had, by

driving on the highway, impliedly consented to provide a blood or breath sample after being

arrested for driving while intoxicated.2 If he refused to honor that implied consent, he faced a

criminal conviction for the refusal because he had two prior DUI convictions. While it can be

argued that Birchfield invalidated implied consent statutes that threaten criminal sanctions for

refusing to provide a blood sample, Birchfield did not conclude that its holding should be applied

retroactively. Therefore, Trooper Boelt was following the law as it existed at the time of the

arrest. And there is no evidence in the record that Trooper Boelt engaged in willful or negligent

conduct in obtaining the blood sample. See Peltier, 422 U.S. at 538-39. He was simply

following the law as it existed at the time. Under these circumstances, we cannot fathom any

deterrent purpose that would be served by excluding otherwise relevant evidence. Hudson v.

Michigan, 547 U.S. 586, 596 (2006) (“[W]e must consider the deterrence benefits, [the]

existence of which is a necessary condition for exclusion.”).

       Because Trooper Boelt acted in good faith reliance on established law, the trial court did

not err in denying Taylor’s motion to suppress the blood sample obtained by Trooper Boelt

following Taylor’s arrest for DUI.




       2
          Prior to Birchfield and the arrest in this case, such implied consent laws were widely
accepted. See Missouri v. McNeely, 569 U.S. 141, 161 (2013) (“[A]ll 50 States have adopted
implied consent laws that require motorists, as a condition of operating a motor vehicle within
the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a
drunk-driving offense.”); South Dakota v. Neville, 459 U.S. 553, 560 (1983) (noting one-year
license revocation “for refusing to take a blood-alcohol test is unquestionably legitimate”).
                                                  -6-
                                   2. Sufficiency of the Evidence

       Taylor argues that even with the results of the blood sample being admitted into

evidence, the evidence was insufficient to find him guilty of DUI, third offense. We disagree.

       “When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is

presumed correct and will not be disturbed unless it is plainly wrong or without evidence to

support it.’” Commonwealth v. Perkins, 295 Va. 323, 327 (2018) (alteration in original)

(quoting Pijor v. Commonwealth, 294 Va. 502, 512 (2017)). This Court “does not ‘ask itself

whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’”

Id. (quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)). “Rather, the relevant

question is, upon review of the evidence in the light most favorable to the prosecution, whether

any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Id. (internal quotation marks omitted) (citation omitted).

       Taylor was charged with driving a motor vehicle “while under the influence of alcohol or

other self-administered intoxicants, and or drugs as described in 18.2-266 (i), (ii), (iii), and or

(iv).”3 Code § 18.2-269(A)(3) provides,

               If there was at [the time of the blood sample] 0.08 percent or more
               by weight by volume of alcohol in the accused’s blood or 0.08
               grams or more per 210 liters of the accused’s breath, it shall be
               presumed that the accused was under the influence of alcohol
               intoxicants at the time of the alleged offense.




       3
         We note that although the indictment lists (i), (ii), (iii), or (iv), the Commonwealth
limited the indictment with the “while under the influence of alcohol or other self-administered
intoxicants, and or drugs” language. As the Court noted in Purvy v. Commonwealth, 59
Va. App. 260, 268 (2011) (quoting Commonwealth v. Nuckles, 266 Va. 519, 523 (2003)),
“Where the indictment includes, as here, specific, narrowing language ‘descriptive of the offense
charged,’ we cannot treat it as immaterial ‘surplusage.’” See also Etheridge v. Commonwealth,
210 Va. 328, 330 (1969). Thus, we consider this an indictment charging a violation of Code
§ 18.2-266(ii), driving “while such person is under the influence of alcohol” and do not consider
whether Taylor violated the “per se” provisions of Code § 18.2-266(i).
                                                -7-
       Thus, if the Commonwealth proved that Taylor’s blood alcohol content was above 0.08%

at the time the sample was taken, then the factfinder may infer “that the accused was under the

influence of alcohol intoxicants at the time of the alleged offense.” Id. “Unless rebutted,

however, the test results are sufficient to establish the blood alcohol concentration at the time of

driving.” Davis v. Commonwealth, 8 Va. App. 291, 298 (1989).

       Here, the certificate of analysis with the results of Taylor’s blood sample testing indicated

that his blood alcohol content was 0.128% by weight by volume. Thus, the trial court could infer

that Taylor was under the influence of alcohol intoxicants at the time of the offense—that is,

when he was driving. Taylor did not offer any evidence to rebut the blood sample results.

Accordingly, the Commonwealth proved that Taylor drove a “motor vehicle . . . (ii) while [he

was] under the influence of alcohol.” Additionally, the Commonwealth entered into evidence

Taylor’s Department of Motor Vehicles record, which established that Taylor had two prior

convictions for DUI within ten years of the current offense. Therefore, the trial court did not err

in finding the essential elements of DUI, third offense, beyond a reasonable doubt.

                                           CONCLUSION

       For the foregoing reasons, we affirm the decision of the trial court.

                                                                                           Affirmed.




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