19730116 1973-3 ORDINANCE NO. 1973-3
AN ORDINANCE ESTABLISHIMG USE OF CHEMICAL TEST
TO DETERMINE ALCOHOL IN BLOOD: PROCEDURE,
QUALIFICATIONS AND LIABILITY OF PERSON WITHDRAW-
ING BLOOD: COSTS: EVIDENCE, SUSPENSION OF LIOENSE
FOR REFUSAL TO SUBMIT TO TEST.
BE IT ORDAINED by the City Council of the City of Fairfax,
Virginia that the ordinance establishing use of chemical test to
determine alcohol in blood, Section 13-82, be, and it hereby is, amended
and re-enacted to read in its entirety as follows:
(a) As used in this section "license" means any operator's, chauffeur's
or learner's permit or license authorizing the operation of a motor
vehicle upon the highways.
(b) Any person whether licensed by Virginia or not, who operates a
motor vehicle upon a public highway in this City on and after January 1,
1973, shall be deemed thereby, as a condition of such operation to have
consented to have a sample of his blood or breath taken for a chemical .
test to determine the alcoholic content of his blood, if such person is
arrested for a violation of Section 13-81 within two hours of the alleged
offense. Any person so arrested shall elect to have either the breatk
or blood sample taken, but not both. ~it shall not be a matter of
defense that either test is not available
(c) If a person after being arrested for a violation of Section 13-81
and after having been advised by the arresting officer that a person who
operates a motor vehicle upon a public highway in this City shall be
deemed thereby, as a condition of such operation, to have consented to
have a sample of his blood or breath taken for a chemical test to deter-
mine the alcoholic content of his blood, and that the unreasonable refusal
to do so constitutes grounds for the revocation of the privilege of
operating a motor vehicle upon the highways of 'this City, then refuses
to permit the taking of a sample of his blood or breath for such tests,
the arresting officer shall take the person arrested before a committing
magistrate and if he does again so refuse after having been further
advised by such magistrate of the law requiring a blood or breath test
to be taken and the penalty for refusal, and so declares again his
refusal in writing upon a form provided by the Division of Consolidated
Laboratory Services (hereinafter referred to as Division), or refuses or
fails to so declare in writing and such fact is ~ertified as prescribed
in paragraph (j), then no'blood or breath sample shall be taken even
though he may thereafter request same.
(d~
1973-3
On!y'a uhysician, registered professional nurse, .graduate laboratory
technician or a technician or nurse designated by order of a court of
rccord acting upon the ~cenuucndation of a licensed physician, using soap
and water to o!eanse the part of the body from which the blood is taken
and using instruments sterilized by the accepted steam sterilizer or some
o~.~.a~ sterilizer w~cn will not affect the~cu~ ~ ~, ....... c'~ of the tes~, or using.
chemically clean sterile disposable syringes, shall withdraw blood for the
purpose of determining the alcoholic content thereof. No civil liability
shall attach to any person authorized to withdraw blood as provided herein
as a result of the act of withdrawing blood from any person submitting
thereto provided the blood was withdrawn according to recognized medical
procedures; and provided further that the foregoing shall not relieve any
such person from liability for negligence in the withdrawing of any blood
sample.
(dl) Portions of the blood sample so withdrawn shall be placed in each of
two vials provided by the Division which vials shall be sealed and labeled
~y the person taking the sample or at his direction, showing on each the
name of the accused, the name of the person taking the blood sample, and
the date and time the blood sample was taken. The vials shall be placed
in two containers provided by the Division, which containers shall be
sealed so as not to allow tampering with the contents. The arresting or
accompanying officer shall take possession of the two containers holding
the vials as soon as the vials are placed in such containers and sealed,
and shall transport or mail one of the vials forthwith to the Division.
The officer taking possession of the other container (hereinafter referred
to as second container)., shall, immediately after taking possession of
said second container give to the accused a form provided by the Division
which shall set forth the procedure to obtain an independent analysis of
the bl6od in the second container, and a list of those laboratories and
their addresses, approved by the Division; such form shall contain a space
for the accused or his counsel to direct the officer possessing such
second container to forward that container to such approved laboratory for
analysis, if desired. The officer having the second container, after
delivery of the form referred to in the preceding sentence (unless at that
time directed by the accused in writing on such form to forward the second
container to an approved laboratory of the accused's choise in which event
the officer shall do so)shall deliver Said second container to the chief
police officer of the City~ and. <ibc'chief police officer who receives the
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~nie s[~all keep it in his possession for a period of seventy-two (72)
hotlrs, during which time the accused or his counsel may, in writing, on
thc form provided hereinabove, direc~ thc chief police officer having
possession of the second container to mail it to the laboratory of the
accused's choice chosen from the approved list.
(d2) The testing of the contents of the second container shall be made in
tke same manner as herea~ set forth concerning the procedure to be
followed by the Division, and all procedures establiShed herein for
transmittal, testing and admission of the result in the trial of the case
shall'be the same as for the sample sent to the Division.
(d3) A fee not to exceed $15.00 shall be allowed the approved laboratory
for making the analysis of the second blood sample which fee shall be
paid out of the appropriation for criminal charges. If the person whose
blood sample was withdrawn is subsequently convicted for violation of
Section 13-81, the fee charged by the laboratory for testing the blood
sample shall be taxed as part of the costs of the criminal case and shall
be paid into the general fund of the City.
(d4) If the chief police officer is not directed as herein provided to
mail it within seventy-two (72) hours after receiving said container then
said officer shall destroy same.
(e) Upon receipt of the blood sample forwarded to the Division for analy-
sis, the Division shall cause it to be examined for alcoholic content and
the Director of the Division or his designated representative shall
execute a certificate which shall indicate the name of the accused, the
date, time and by whom the blood sample was received and examined, a state-
ment that the container seal had not been broken or otherwise tampered
with, a statement that the container was one provided by the
Division and a statement of the alcoholic content of the sample. The
certificate attached to the vial from which the blood sample examined
was taken shall be returned to the clerk of the court in which the charge
will be heard. The certificate attached to the container forwarded on
behalf of the accused shall also be returned to the clerk of the court
in which the charge will be heard, and such certificate shall be admiss-
ible in evidence when attested by the paZhologist or by the supervisor
of the laboratory approved by the Division.
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failure if found
1973-3
~(f) When any blood sample taken in accordance with the provisions of this
section is forwarded for analysis to the Division, a report of the results
of such analysis shall be made and filed in that office. Upon proper
identification of the vial into which the blood sample was placed, the
certificate as provided for in this section shall, when duly attested by
mbo Director of the Division or his designated representative, be
admissible in any court, in any criminal proceeding, as evidence of the
facts therein stated and of the results of such analysis.
(g) Upon the request of the person whos blood or breath sample was taken
for a chemical test to determine the alcoholic content of his blood, the
results of such test or tests shall be made available to him.
(h) A fee not exceeding ten dollars shall be allowed the person with-
drawing a blood sample in accordance with this section, which fee shall be
paid out of the appropriation for criminal charges. If the person whose
blood sample was withdrawn is subsequently convicted for violation of
Sec. 13-81 the amount charged by the person withdrawing the'sample
shall be taxed as part of the costs of the criminal case and shall be
paid into the general fund of the City.-
(i) In any trial for a violation of Section 13-81, this section shall
not otherwise limit the introduction of any relevant, evidence bearing
upon any question, at issue before the court, and the court shall, regardless
of the result of the blood or breath test or tests, if any, consider such
other relevant evidence of the condition of the accused as shalI be
admissible in evidence. The failure of an accused to permit a sample
of his blood or breath to be taken for a chemical test to determine the
alcoholic content of his blood is not evidence and shall not be subject
to comment at the trial of the case; nor shall the fact that'a blood or
breath test had been offered the accused be evidence or the subject of
comment.
(j) The form referred to in paragraph (c) shall contain a brief statement
of the law requiring the taking ~f a blood or breath sample and the
penalty for' refusal, a declaration of refusal and lines for the signs-.
ture of the person from whom the blood or breath sample is sought, the
date and the signature of a witness to the signing. If such person refuses
or fails to execute such declaration, the committing justice, clerk or
assistant clerk shall certify such fact, and that the committing justice,
clerk or assistant clerk advised the person arrested that such refusal or
to be unreasonable, constitutes grounds for the revoca-
' 'tion ~f such person's license to drive. The committing or issuing
justice, clerk or assistant clerk shall forthwith issue a warrant
ckarging the person refusing to take the test to determine th~ alco-
holic content of his blood, with violation of this section. The
warrant shall be executed in the same manner as criminal warrants.
%'~,e executed declaratzon of refusal or the certz~zcate of the com-
mitting justice, as the case may be, shall be attached to the warrant
and shall be forwarded by the comitting justice, clerk or assistant clerk
to the court in which the offense of driving under the influ6nce of
intoxicants shall be tried.
(1) When the court receives the declaration of refusal or certificate
referred to in paragraph (k) together with the warrant charging the
defendant with refusing to submit to having a sample of his blood or breath
taken for the determination of the alcoholic content of his blood, the court
shall fix a date for the trial of said warrant, at such time as the court
shall designate, but subsequent to the defendant's criminal'trial for
driving under the influence of intoxicants.
(m) The declaration of refusal or certificate under paragraph (k), as
the case may be, shall be prima facie evidence that the defendant refused
to submit to the taking of a sample of his blood or breath to determine
the alcoholic content of his blood, as provided hereinabove. However,
this shall not be deemed to prohibit the defendant from introducing on
his behalf evidence of the basis for his refusal to submit to'the taking
of a sample of his blood or breath to determine the alcoholic content of
his blood. The court shall determine the reasonableness of such refusal.
(n) If the court shall find the defendant guilty as charged in the warrant,
the court shall suspend the defendant's license for a period df.. 90 days
for a first offense and for six months for a second or subsequent of Yense
or refusal within one year of the. first or other such refusals; the time
shall be computed as follows: the date of the first offense and the date
of the second or subsequent offense.
(o) The court shall forward the defendant's license to the Commissioner of
the Division of Motor Vehicles of Virginia as in other cases of similar
nature for suspenseion of license unless, however, the defendant shall
appeal his conviction in which case the court shall return the license
to the defendant upon his appeal being perfected.
1973-3
(p) The procedure for appeal and trial shall be the same as provided by
law for misdemeanors.
(q) No person arrested for a violation of Sec- 13-8i shall ~e required
to execute in favor of any ?erson or corporation a waiver or release of
l[ab~ ~, in connection with th~ %~i~hdrav~al of blood as a condition pre-
cedent to the withdrawal of blood as provided for herein.
(r) The court or the jury trying the case shall determine the innocence
or the guilt of the defendant from all the evidence concerning his condi-
tion at the time of the alleged offense.
(rl) Chemical analysis of a person's breath, to be considered valid under
the provisions of this section, shall be performed by an individual pos-
sessing a valid license to conduct such tests, with a type of equipment
and in accordance with the methods approved by the State Health Com-
missioner. Such breath-testing equipment shall be tested for its accu-
racy by the State Health Commissioner's office at least once every six
months.
Any individual ~onduc~in~ a br~ath'test ~nder the' p~o~isions'o~ this
section and as authorized by the State Health Commissioner shall issue
a certificate which will indicate that the test was conducted in accord-
ance with the manufacturer's specifications, the equipment on which the
breath test was conducted has been tested within the past six 'months, the
name of the accused, the date, the time the sample was taken from the
accused, the alcoholic content of the sample, and by whom the sample was
examined. The certificate, as provided for in this section, when duly
attested by the authorized individual conducting the breath test, shall
be admissible in any court in any crminal proceeding as evidence of the
alcoholic content of the blood of the accused. In no case may the
officer making the arrest, or anyone with him at the time of the arrest,
or anyone participating in the arrest of the accused, make the breath
test or analyze the results thereof.
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· {~)' ~nc steps herein set forth relating to the taking, handling, identi-
fication and disposition of blood or breath samples are procedural in
nature and not substantive. Substantial compliance therewith shall be
deemed to be sufficient. Failure to comply with any one or more of such
steps or pozczons ~h~.o~_,. ora w~:i~ J.~ dkc results of the two blood
tests shall not of itself be grounds for finding the defendant not guilty,
but shall go to the weight of the evidence and shall be considered as set
forth above with all the evidence in the case, provided that the defendant
shall have the right to introduce evidence on his own behalf to show non-
compliance with the aforesaid procedure or any part thereof, and that as
a result his rights were prejudiced.
Introduced:
Adopted:
January 2, 1973.
January 16, 1973.
ATTEST:
CITY ~CLERK