                    COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Willis and Senior Judge Hodges
Argued at Alexandria, Virginia

JERRY D. MATTHEWS

v.       Record No. 1281-94-4          MEMORANDUM OPINION * BY
                                      JUDGE WILLIAM H. HODGES
COMMONWEALTH OF VIRGINIA                  OCTOBER 24, 1995


              FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                    Arthur B. Vieregg, Jr., Judge

          William D. Pickett (P. Clark Kattenburg, P.C., on
brief), for appellant.
            Marla Lynn Graff, Assistant Attorney General
            (James S. Gilmore, III, Attorney General, on
            brief), for appellee.



     Jerry D. Matthews (appellant) was convicted by a jury of

driving while intoxicated, pursuant to Code § 18.2-266.      On

appeal, appellant contends that the trial judge erred in allowing

the Commonwealth to present evidence of his intoxication after

ruling that the blood test results were inadmissible.      We agree

and reverse the conviction.

     The facts are not in dispute.    On September 16, 1993,

Trooper Marcus McClanahan saw appellant's vehicle weave in and

out of traffic lanes.   When appellant stopped his vehicle,

McClanahan approached and noticed that appellant smelled of

alcohol.   Appellant had red eyes, a flushed face, and slurred

speech.    Appellant fell down when he exited his vehicle.   After

failing field sobriety tests, McClanahan took appellant to a

     *
      Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
detention center where he was advised of the implied consent law.

Appellant elected to take a breath test, but, because appellant

belched several times, the test could not be properly

administered.   Appellant was then offered a blood test.

Appellant consented to the test.   After a technician drew blood

and placed it in two vials, McClanahan orally advised appellant

of his right to have one of the vials tested by an independent

laboratory.   McClanahan did not give appellant a copy of the form

informing appellant of his right to an independent test and

listing approved independent labs, and appellant did not have the

second vial of blood tested.   In a letter opinion, the trial

judge found that McClanahan's failure to give appellant a copy of

the form precluded admission of the test results.   The trial

judge ruled that, even if the "substantial compliance"

requirement applied, "McClanahan's verbal summary of

[appellant's] right to obtain an independent analysis of his

blood does not constitute 'substantial compliance' of the

statute's requirements."
     The trial judge also addressed the issue of waiver in his

letter opinion. He explained that
          [e]vidence introduced by the Commonwealth
          suggests that [appellant] was intoxicated
          during the taking of his blood, so much so
          that he was disorderly and had to be
          restrained. Under such circumstances, the
          Trooper could not have reasonably concluded
          that [appellant] was capable of making a
          meaningful decision to waive his right to
          have a sample of his blood tested by an
          independent laboratory, a right afforded him
          by the General Assembly. Furthermore, by



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          failing to leave the form with [appellant],
          the Trooper deprived [appellant] of the
          opportunity to exercise that right when he
          became sober.


     Despite his decision to preclude admission of the

Commonwealth's blood test results, the trial judge allowed the

Commonwealth to present other evidence of intoxication.    Based on

McClanahan's testimony, the trial judge found appellant guilty.

     "[T]he failure to comply with [the] requirement of the

statute [that an accused be given the form] negates the

possibility of 'substantial compliance.'"     Artis v. City of

Suffolk, 19 Va. App. 168, 171, 450 S.E.2d 165, 167 (1994)

(reversing conviction and dismissing charge where police officer

showed form to accused and returned it to file).    "[B]ecause the

independent test results could have been exculpatory," mere

suppression of the Commonwealth's test results "is [an]

inadequate [remedy]."     Shoemaker v. Commonwealth, 18 Va. App. 61,

64, 441 S.E.2d 354, 356 (1994).     See also Sullivan v.

Commonwealth, 17 Va. App. 376, 378, 437 S.E.2d 242, 243 (1993);
Breeden v. Commonwealth, 15 Va. App. 148, 150, 421 S.E.2d 674,

675 (1992) (failure to provide results of test requested deprives

accused of significant method of establishing his innocence).

     The facts of this case established that appellant was not

given or offered the requisite form and did not knowingly and

intelligently waive his right to an independent analysis.

Accordingly, we reverse appellant's conviction and dismiss the

charge against him.     See Artis, 19 Va. App. at 170-71, 450 S.E.2d



                                  -3-
at 166 (absent evidence of knowing and intelligent waiver or that

accused was offered form and refused to take it, failure to give

accused form required reversal and dismissal).

                                          Reversed and dismissed.




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