                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Coleman and Bumgardner
Argued at Salem, Virginia


JACOB JACKSON FELTS
                                       MEMORANDUM OPINION * BY
v.       Record No. 1997-98-3    CHIEF JUDGE JOHANNA L. FITZPATRICK
                                           OCTOBER 5, 1999
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF GRAYSON COUNTY
                       J. Colin Campbell, Judge

             James T. Ward (Joseph H. McGrady; McGrady &
             McGrady, on briefs), for appellant.

             H. Elizabeth Shaffer, Assistant Attorney
             General (Mark L. Earley, Attorney General,
             on brief), for appellee.


     Jacob Jackson Felts (appellant) was convicted of aggravated

involuntary manslaughter, in violation of Code § 18.2-36.1(B),

by causing death as the result of driving an automobile while

under the influence of alcohol.    On appeal, he argues the trial

court erred in refusing to suppress the certificate and results

of his blood alcohol analysis.    For the following reasons, we

affirm.

                                  I.

     "In reviewing a trial court's denial of a motion to

suppress, '[t]he burden is upon [the defendant] to show that


     *
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
th[e] ruling, when the evidence is considered most favorably to

the Commonwealth, constituted reversible error.'"   McGee v.

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)

(en banc) (citation omitted).   While we are bound to review de

novo the ultimate questions of reasonable suspicion and probable

cause, we "review findings of historical fact only for clear

error 1 and . . . give due weight to inferences drawn from those

facts by resident judges and local law enforcement officers."

Ornelas v. United States, 517 U.S. 690, 699 (1996) (footnote

added).

     The evidence established that Trooper James Blevins

(Blevins) received a dispatch at 11:26 p.m. to investigate an

accident in Grayson County, Virginia.   Upon his arrival at the

accident scene, Blevins found appellant's wrecked vehicle, which

had been traveling southbound on Highway 89.   He described the

accident as follows:

          [The car] had run off the right shoulder of
          the roadway traveling two hundred and
          seventy-six (276) feet. . . . Then it had
          reentered the roadway as it was traveling
          South and gone, was going broadside for one
          hundred and ninety (190) feet before it
          struck the bank. Then it went on another
          sixty-six (66) feet, struck a culvert in a
          driveway. At this time, the vehicle went
          airborne and crossed a woven wire
          fence. . . . Went airborne for one hundred
          and fifty (150) feet, then it came back in,

     1
       "In Virginia, questions of fact are binding on appeal
unless 'plainly wrong.'" McGee, 25 Va. App. at 198 n.1, 487
S.E.2d at 261 n.1 (citations omitted).


                                - 2 -
           to the ground and made a large area in the
           field. It went back in the air. Traveled
           approximately seventy-five (75) more feet
           and continued on, crossed a, through a fence
           and struck some pine trees, two hundred and
           twenty-five (225) feet from where it had
           come down from being airborne for a hundred
           and fifty (150) feet. The total distance of
           this accident measured nine hundred seven
           (907) feet.

The car came to rest "on its top after it struck a tree."     The

weather was clear, and the road was dry.   Blevins found a wine

bottle and loose beer bottles on the ground at the scene near

the vehicle.   Commonwealth's Exhibit 9, a photo of the inside of

the car, showed beer bottles inside the vehicle.   A passenger in

appellant's car, Carl Moser, was pronounced dead at the scene.

     When Blevins arrived, rescue workers "had [appellant]

loaded" in their emergency vehicle to transport him to Twin

County Regional Hospital.   At the hospital, medical personnel

attended to appellant’s injuries.   "[T]hey told [Blevins] that

[appellant] was going to be taken to Baptist Hospital pretty

soon."   Blevins advised appellant of his Miranda rights and of

the implied consent law, after which appellant voluntarily

agreed to take a blood test.   At 2:46 a.m., a lab technician

withdrew the blood.   The parties stipulated that the blood

sample was taken three (3) hours and twenty-six (26) minutes

after the accident.   An analysis of the blood sample revealed

appellant's blood alcohol content to be ".08% by weight by

volume."


                               - 3 -
     Dr. James Valentour was qualified as an expert in

toxicology.   Based on minimum and maximum dissipation rates, he

opined that, at the time of the accident, appellant's blood

alcohol would have been between "a .11 or .12 to as high as .19

or .20."   Valentour described how certain amounts of alcohol

affect one's physical abilities.   Based on his data, Valentour

opined that appellant was under the influence of alcohol at the

time of the accident.

     The trial court refused to suppress the blood test results.

However, it ruled that, because appellant was not timely

arrested, "the results of the tests creates [sic] no legal

presumption of intoxication."   Because appellant "was being

transported to another hospital in another state, . . . exigent

circumstances justified the taking of the defendant's blood

without a search warrant."   The trial court relied solely on the

testimony of the toxicologist to interpret and explain the

significance of the blood alcohol content of appellant's blood.

     Appellant was subsequently tried by the court and

stipulated to the following:

           [I]f the Court considers the evidence of the
           blood together with the evidence presented
           by the Commonwealth at the suppression
           hearing and evidence contained in the
           transcript of the preliminary hearing, it
           would be sufficient to convict beyond a
           reasonable doubt of . . . some degree of
           involuntary manslaughter.




                                - 4 -
Although the trial court relied solely on the testimony of the

toxicologist at the suppression hearing, he nevertheless

admitted the certificate of analysis into the record at trial.

Based on the evidence presented and accepting appellant's

stipulation, the trial court convicted appellant of aggravated

involuntary manslaughter, in violation of Code § 18.2-36.1.

                                II.

     Appellant contends that the trial court erred in refusing

to suppress the results of the blood alcohol analysis.   Because

he was arrested over two hours after the alleged offense,

appellant asserts that he did not consent to have his blood

alcohol tested.   Moreover, appellant contends that because he

showed no indications that he was intoxicated, the officer had

no probable cause to arrest him and take a blood sample based on

exigent circumstances. 2

     The Commonwealth concedes on appeal, as it did at trial,

that because police failed to arrest appellant for driving under

the influence of alcohol within two hours of the accident, the

statutory presumptions of Code § 18.2-269 were inapplicable.


     2
       As a preliminary matter, the Commonwealth argues that Rule
5A:18 bars appellant from arguing on appeal that Blevins had no
probable cause to arrest him and take a blood sample based on
exigent circumstances. We conclude from the transcript that the
trial court specifically found that "exigent circumstances
justified the taking of [appellant's] blood without a search
warrant" and defense counsel objected to this ruling.
Therefore, Rule 5A:18 does not bar our review of the merits of
this appeal. See Wright v. Commonwealth, 4 Va. App. 303, 305,
357 S.E.2d 547, 549 (1987).

                               - 5 -
However, the Commonwealth asserts that other evidence presented,

including the testimony of the toxicologist and the photographs

of the accident scene, proved appellant's intoxication at the

time of the accident.

     A person arrested for driving under the influence within

two hours of such offense is deemed to have consented to a blood

alcohol test.    See Code § 18.2-268.2. 3       Test results that are

obtained in compliance with the requirements of Code

§ 18.2-268.2 are entitled to certain rebuttable presumptions.

See Code § 18.2-269. 4    However, if an accused driver is not


     3
         Code § 18.2-268.2 provides in pertinent part:

            Any person, whether licensed by Virginia or
            not, who operates a motor vehicle upon a
            highway, . . . in this 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 or
            § 18.2-266.1 or of a similar ordinance
            within two hours of the alleged offense.
     4
         Code § 18.2-269 provides in pertinent part:

                 A. In any prosecution for [involuntary
            manslaughter under Code § 18.2-36.1,] . . .
            the amount of alcohol in the blood of the
            accused at the time of the alleged offense
            as indicated by a chemical analysis of a
            sample of the accused's blood or breath to
            determine the alcohol content of his blood
            . . . shall give rise to the following
            rebuttable presumptions:

                *     *      *     *        *       *     *

                                 - 6 -
timely arrested, his or her consent is considered invalid,

prohibiting the Commonwealth from relying on the statutory

presumption.    See Essex v. Commonwealth, 228 Va. 273, 286, 322

S.E.2d 216, 223 (1984); Castillo v. Commonwealth, 21 Va. App.

482, 490-91, 465 S.E.2d 146, 150 (1995).

     The facts of the instant case are remarkably similar to

those in Tipton v. Commonwealth, 18 Va. App. 370, 444 S.E.2d 1

(1994).   In both cases, the defendant was injured in an

accident, was about to be transported for medical care, was read

the implied consent law, and a blood sample was taken.     See id.

at 371-72, 444 S.E.2d at 2.   In both cases, the blood tests were

administered more than two hours after the accident, and the

Commonwealth relied upon expert testimony to establish the blood

alcohol level in each defendant's blood.    See id.

     Similar to Tipton, the Commonwealth in the instant case

conceded at trial that it was not relying on the rebuttable

presumption of Code § 18.2-269 to prove appellant's

intoxication.    See id. at 372, 444 S.E.2d at 2.   Instead, the

Commonwealth asserted that the officer was entitled to conduct a

search of appellant and seize his blood because there was


           (3) If there was at that time 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.


                                - 7 -
sufficient probable cause to justify a search and exigent

circumstances existed to justify noncompliance with the warrant

requirement of the Fourth Amendment. 5   See id. at 372-73, 444

S.E.2d at 2.

     Based upon the rationale in Tipton, we conclude that the

results of the blood alcohol analysis, as introduced through the

testimony of the toxicologist, was properly admitted as other

relevant evidence that appellant was driving under the influence

of alcohol.    Despite the absence of a timely arrest or warrant,

a person may be required to submit to a search, here, a blood

test, based on probable cause and exigent circumstances.      See

id. at 373, 441 S.E.2d at 3 (noting that a blood test is a

"search" within the meaning of the Fourth Amendment).      Such

warrantless searches do not violate any constitutional rights so

long as the search is supported by probable cause, the evidence


     5
         The Commonwealth's Attorney stated the following:

            We're not asking the Court to admit this
            blood analysis of the defendant under
            18.2-268 or any part of that for any
            presumption of its content. The
            Commonwealth would assert that this falls
            under other relevant evidence and by that
            we're not, the Commonwealth [concedes] that
            we do not get any presumption under [Code
            § 18.2-269]. . . . And I guess we want to
            make it crystal clear, we're not asking [for
            the benefit of the presumption]. We don't
            think we can have that. We think any
            evidence as to the alcohol or the influence
            of alcohol would have to come in through
            basically the toxicologist.


                                - 8 -
is of an evanescent nature, and the means and procedures

employed are reasonable.      See Schmerber v. California, 384 U.S.

757, 768-71 (1966); see also Tipton, 18 Va. App. at 373-74, 441

S.E.2d at 3.    Thus,

             exigent circumstances justif[y] warrantless
             seizure of a blood sample for alcohol level
             analysis when police ha[ve] probable cause
             to arrest and fear[ ] loss of evidence by
             dissipation of alcohol in the blood.
             However, a warrantless search of that kind
             will be upheld only if (1) the process is a
             reasonable one which is performed in a
             reasonable manner; (2) there was in advance
             "a clear indication that in fact [the
             evidence sought] will be found;" and (3)
             there were exigent circumstances, such as a
             need to take the test before the percentage
             of alcohol in the blood diminished.

Tipton, 18 Va. App. at 373, 441 S.E.2d at 3 (citing Schmerber,

384 U.S. at 766-72).

     In this case, the presence of wine and beer at the scene

inside the wrecked car, and the distance and manner that

appellant's car traveled after leaving the road, established

sufficient probable cause of involuntary manslaughter and

driving under the influence to enable Blevins to obtain a

warrant for a search of appellant.        See Schmerber, 384 U.S. at

768-71; Tipton, 18 Va. App. at 373-74, 441 S.E.2d at 3.       Due to

the evanescent nature of blood alcohol and because appellant was

being transported to another hospital, we agree that exigent

circumstances justified the warrantless arrest and search of

appellant.     See id.   Moreover, because the Commonwealth relied


                                  - 9 -
on expert opinion to explain the significance of appellant's

blood alcohol level and did not rely on the presumption in Code

§ 18.2-269, the trial court did not err in allowing the test

results in evidence.   See id. at 374, 444 S.E.2d at 3.

Accordingly, we affirm appellant's conviction.

                                                          Affirmed.




                              - 10 -
