                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Fitzpatrick
Argued at Alexandria, Virginia


CHARLES GILBERT TAYLOR

v.        Record No. 1977-94-4        MEMORANDUM OPINION *
                                  BY JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA                 JULY 18, 1995


         FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                     Richard B. Potter, Judge
          JoAnne B. Butt for appellant.

          Robert H. Anderson, III, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on brief),
          for appellee.



     Charles Gilbert Taylor was convicted by a jury of

involuntary manslaughter.   He contends that the trial court erred

by admitting into evidence the results of a blood alcohol serum

test because the Commonwealth did not prove an unbroken chain of

custody for the blood sample and did not prove that the method

for drawing and testing the blood sample was reliable.     For the

reasons that follow, we affirm the trial court's determinations.

     Charles Gilbert Taylor drove his pickup truck across the

center line of the highway and struck another vehicle head-on,

killing the car's driver.   John Whitcomb, an FBI special agent,

witnessed the accident.    Whitcomb, while assisting Taylor from

his truck, noticed a very strong odor associated with alcoholic

beverages on Taylor's breath.    Another witness, Tawana Mack, who
     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
assisted Whitcomb, also noticed the smell of alcoholic beverages

from inside the truck.    Greg Duvall, a Virginia State Trooper who

also assisted Taylor from the truck, observed that Taylor was

"unsteady on his feet" and had "an obvious odor of alcohol about

him."    Mark Chadwick, an emergency medical technician at the

scene, noticed a strong odor of alcohol on Taylor's breath.

        At the hospital, Deborah Oaks, an emergency room nurse,

tended to Taylor.    Because Taylor was a trauma patient, Oaks was

required to take a sample of his blood.      She cleansed his arm

with a seventy percent isopropyl alcohol solution and wiped the

area dry with a sterile four-by-four gauze pad.      Oaks drew the

blood, injected it into sealed vials, placed Taylor's name and

hers on the vials, placed the vials on Taylor's stretcher, and

waited with him.    This area of the emergency room was accessible

only to physicians and to hospital employees.
        Oaks testified that shortly after placing the vials on the

stretcher, she "made sure they [the vials] were taken" to the

hospital laboratory for analysis.       The laboratory was located one

hundred feet from where Taylor was on the stretcher.      Oaks could

not remember or identify the person who took the blood vials to

the lab.    Jean Scott, a medical technologist, testified that she

received the blood vials at the lab and performed the blood serum

analysis on the sample.    Scott was not able to remember who

brought the blood vials to the lab.      She said, "I'm not sure

whether an emergency room staff member brought it to the lab or a



                                  -2-
lab staff member brought it to the lab."

     At trial, Nurse Oaks testified that the procedure she used

for cleansing Taylor's arm and drawing his blood is a standard

and customary procedure.    She acknowledged, however, that had

Taylor been brought to the hospital by police for a "legal" blood

alcohol test, rather than as a trauma patient, she would have

cleansed his arm with soap and water.   Jean Scott, the medical

technologist, testified that the manufacturer of the machine that

the hospital uses for measuring blood alcohol content recommends

"that [when taking blood for 'legal' purposes,] we use soap just

in the off chance that the alcohol swab could cause some

contamination."   Scott testified that the machine is calibrated

regularly and was in proper working order.
     Dr. Anh Huynh, a state toxicologist, testified that the

blood alcohol test results showed that when Taylor's blood was

drawn, the serum contained 181.6 milligrams of alcohol per

deciliter of blood.   He equated this amount to a whole blood

alcohol level (B.A.C.) of .155.    He stated that a B.A.C. of .155

would affect a person's perception, vision, judgment, and

coordination.   Dr. Huynh testified that a person with that

quantity of alcohol in his blood "would [have] some difficulties

of walking straight" and that "also the manner you brake or you

swerve the car" would be affected.

                       I.   CHAIN OF CUSTODY

     Taylor contends the chain of custody of the blood sample was



                                  -3-
broken because neither Nurse Oaks nor Jean Scott could account

for how or who handled or took the blood sample from the

stretcher to the laboratory.

     A party proffering scientific test results performed upon a

substance must establish by a preponderance of the evidence that

the substance tested is authentic, that is, that it is the

substance which it is purported to be.   See Ives v. Commonwealth,

184 Va. 877, 882, 365 S.E.2d 904, 906 (1946).   Authentication

requires "proof of a chain of custody and a showing with
reasonable certainty that the item had not been altered,

substituted, or contaminated prior to analysis, in any way that

would affect the results of the analysis."   Washington v.

Commonwealth, 228 Va. 535, 550, 323 S.E.2d 577, 587 (1984)

(emphasis added), cert. denied, 471 U.S. 1111 (1985).     Only if a

"vital link in the chain of possession is not accounted for," is

the reasonable certainty requirement not met, "because then it is

as likely as not that the evidence analyzed was not the evidence

originally received."   Robinson v. Commonwealth, 212 Va. 136,

138, 183 S.E.2d 179, 180 (1971), cert. denied, 454 U.S. 895

(1981).
          [The Commonwealth] is not required to exclude
          every conceivable possibility of
          substitution, alteration, or tampering. All
          that is required in order to establish a
          chain of custody is that the Commonwealth's
          evidence "afford reasonable assurance that
          the exhibits at trial are the same and in the
          same condition as they were when first
          obtained."




                                -4-
Pope v. Commonwealth, 234 Va. 114, 121, 360 S.E.2d 352, 357

(1987), cert. denied, 485 U.S. 1015 (1988) (quoting Smith v.

Commonwealth, 219 Va. 554, 559, 248 S.E.2d 805, 808 (1978)).

     The Commonwealth's evidence reasonably assures that Taylor's

blood samples taken by Oaks were the same samples tested by Scott

and that they had not been altered, tampered with, or

substituted.   Oaks took the blood sample, placed it in vials,

labeled the vials, placed the vials on a stretcher with Taylor,

and waited there with him.   Access to the area was limited to

physicians and employees.    Scott stated that either an emergency

room staff member or a lab staff member brought the sealed vials,

which contained the blood sample, to her at the lab.    The vials

were carried only one hundred feet from the stretcher to the lab.
     The links in the chain of possession in the hospital were

sufficiently accounted for to provide reasonable assurance that

the blood sample had not been altered, adulterated, or

substituted.   The evidence is sufficient to support the trial

court's finding that the blood sample was authenticated as

Taylor's without being altered.

                 II.   RELIABILITY OF BLOOD TESTING

     The appellant contends that the blood test result is invalid

because the nurse used an alcohol swab, rather than soap and

water, to cleanse Taylor's arm and, as a consequence, probably

contaminated the blood sample with isopropyl alcohol.    Thus, he

argues, the trial court erred by admitting the blood test results


                                  -5-
into evidence.

     The admissibility of evidence is within the sound discretion

of the trial court.    We will not disturb the trial court's ruling

to admit evidence absent an abuse of discretion.     Blain v.

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

(citation omitted).    "When scientific evidence is offered, the

court must make a threshold finding of fact with respect to the

[fundamental] reliability of the scientific method."     Spencer v.
Commonwealth, 240 Va. 78, 97, 393 S.E.2d 609, 621, cert. denied,

498 U.S. 908 (1990).

     Code § 18.2-268.5 requires that, when withdrawing blood for

purposes of a DUI prosecution under Code § 18.2-266, the area

from which blood is to be drawn must be cleansed with soap and

water, polyvinylpyrrolidone iodine, or benzalkonium chloride.

Because the DUI statutes specify the means for cleansing the

puncture area, failure to comply with the statutory requirement

necessitates that the prosecution be dismissed.     See Brush v.
Commonwealth, 205 Va. 312, 136 S.E.2d 864 (1964), and Kyhl v.

Commonwealth, 205 Va. 240, 135 S.E.2d 768 (1968).    The statutory

requirements of Code § 18.2-268 are to be strictly applied, Lutz

v. City of Richmond, 205 Va. 93, 97-98, 135 S.E.2d 156, 159-60

(1964), but the requirements apply only to DUI prosecutions under

Code § 18.2-266, Essex v. Commonwealth, 228 Va. 273, 322 S.E.2d

216 (1984), and not to an involuntary manslaughter prosecution

under Code § 18.2-36.


                                 -6-
     In an involuntary manslaughter prosecution, the degree of

the driver's intoxication or impairment from alcohol ingestion is

relevant to a determination of the driver's "negligence, whether

ordinary, gross, or wanton" so as to demonstrate a reckless

disregard of human life.    Id. at 283, 322 S.E.2d at 221-22.    For

blood test results to be admissible to prove the degree of

impairment or intoxication, the evidence must prove "the

reliability of the procedures used," Essex, 228 Va. at 285, 322

S.E.2d at 223, that is, that the procedures utilized are likely

to produce a reliable result.   The burden is on the Commonwealth,

as the proponent of the evidence, to prove that the procedures

used yielded a reliable result.
     Nurse Oaks testified that, except when drawing blood for DUI

prosecutions, the traditional and customary procedure for

cleansing and sterilizing the puncture area is with an isopropyl

alcohol solution.    She testified that before drawing the blood,

she dried the area with a sterile gauze pad.   While no direct

evidence was offered that the procedure could not affect the test

results, from Oak's testimony, the fact finder could infer that

because the area was dry, no isopropyl alcohol remained to

contaminate the area or the blood sample and, therefore, that the

test results were accurate and reliable.   Accordingly, the

Commonwealth met its burden of proving the reliability of the

testing procedure.

     The evidence offered by Taylor concerning the recommended


                                  -7-
procedure by the manufacturer of the machine for testing goes to

the weight of the evidence and not its admissibility.    See State

v. LaFountain, 231 A2d 635 (1967).   The trial court did not abuse

its discretion by admitting the blood test results for the

purpose of proving the effects of alcohol ingestion upon Taylor.

     Therefore, we affirm the involuntary manslaughter

conviction.

                                                          Affirmed.




                               -8-
BENTON, J., dissenting.



     To introduce a scientific analysis of blood, the proponent

of the evidence must first establish as a proper foundation for

the admission of the analysis a chain of possession of the blood

that was analyzed.     Washington v. Commonwealth, 228 Va. 535, 550,

323 S.E.2d 577, 587 (1984), cert. denied, 471 U.S. 1111 (1985).

The rule is often stated as follows:
          The basic rule for admitting demonstrative
          evidence is that the burden is upon the party
          offering the evidence to show with reasonable
          certainty that there has been no alteration
          or substitution of it. . . . However, "[t]he
          requirement of reasonable certainty is not
          met when some vital link in the chain of
          possession is not accounted for, because then
          it is likely as not that the evidence
          analyzed was not the evidence originally
          received."


Robinson v. Commonwealth, 212 Va. 136, 138, 183 S.E.2d 179, 180

(1971)(citation omitted).    The evidence in this case failed to

establish a chain of possession.

     The Commonwealth failed to present any evidence to account

for the handling of Taylor's blood from the time it was taken

from Taylor until the time it was delivered to the laboratory.

Nothing in the record or in the majority's opinion addresses the

void created by the failure to account for this vital link in the

chain of possession.    Approving the admission of this evidence

violates the fundamental principle that "where the substance

analyzed has passed through several hands the evidence must not

leave it to conjecture as to who had it and what was done with it

                                  -9-
between the taking and the analysis".     Rodgers v. Commonwealth,

197 Va. 527, 531, 90 S.E.2d 257, 260 (1955).

     For these reasons, I would hold that the trial judge erred

in admitting the blood analysis report.    Therefore, I dissent.




                              -10-
