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19760203 1976-3 ORDINANCE NO. 1976-3 AN ORDINANCE AMENDING SECTION 13-82 OF THE FAIRFAX CITY CODE BE IT ORDAINED by the City Council of the City of Fairfax, ~irginia that Section 13-82 of the Code of the City of Fairfax be, ~nd it hereby is, amended and reenacted to read in its entirety as ~ollows: "Sec. 13-82. Same-- Use of chemical test to determine alcohol in blood; procedure; costs; evidence; suspension of license for refusal to submit to test. "(a) As used in this section "license" means any operator's, chauffeur's or learner's permit or license authorizing the operatio~ 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 breath or blood sample take ut not both. It shall not be a matter of defense that either test .s not available. "(c) If a person after being arrested for a violation of Section 13-81 and after having been advised by the arresting office~ 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 determine 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 i~ 1976-3 -2 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 certifie as prescribed in paragraph (j), then no blood or breath sample shal be taken even though he may thereafter request same. "(d) Only a physician, registered professional nurse, graduat laboratory technician or a technician or nurse designated by order of a court of record acting upon the recommendation of a licensed physician, using soap and water to cleanse the part of the body from which the blood is taken and using instruments sterilized by the accepted steam sterilizer or some other sterilizer which will not affect the accuracy of the test, 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 fore- going 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 by 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 container and sealed, and shall transport or mail one of the Vials forthwith 1976-3 -3 to the Division. The officer taking possession of the other con- tainer (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 fort the procedure to obtain an independent analysis of the blood 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 possess- ing such second container to forward that container to such approve, 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 choice in which event the officer shall do so) shall deliver said second container to the chief police officer of the City, and the chief police officer who receives the same shall keep it in his possession for a period of seventy-two (72) hours, during which time the accused or his counsel may, in writing, on the form provided hereinabove, direct the chief police officer havi 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 sha be made in the same manner as hereafter 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 approv 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 im subsequently con- victed 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. 1976-3 -4 "(d4) If the ch±ef pol±ce off±cer Ks not d±rected as here±n 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 analysis, 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 statement that the con- tainer 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 wil 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 admissible in evidence when attested by the pathologist or by the supervisor of the laboratory approved by the Division. "(f) when any blood sample taken in accordance with the pro- visions 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 the Director of the Division his designated representative, be admissible in any court, in any criminal or civil proceeding, as evidence of the facts therein stated and of the results of such analysis. "(g) Upon the request of the person whose blood or breath sample was taken for a chemical test to determine the alcoholic con. tent 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 withdrawing a blood sample in accordance with thi, s section, 1976-3 -5 which fee shall be paid out of the appropriation for criminal charges. If the person whose blood sample was withdrawn is sub- sequently 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 shall 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 by the City at the trial of the case, except in rebuttal; nor shall the fact that a blood or breath test had been offered the accused be evidence or the subject of comment by the City, except in rebuttal. "(j) The form referred to in paragraph (c) shall contain a brief statement of the law requiring the taking of a blood or breat sample and the penalty for refusal, a declaration of refusal and lines for the signature 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 declarati 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 failure if found to be unreasonable, constitutes grounds for the revocation of such person's license to drive. The committing or issuing justice, cler or assistant clerk shall forthwith issue a warrant charging the person refusing to take the test to determine the alcoholic content of his blood, with violation of this section. The warrant shall be executed in the same manner as criminal warrants. 1976-3 -6 "(k) The executed declaration of refusal or the certificate of the committing justice, as the case may be, shall be attached to the warrant and shall be forwarded by the committing justice, clerk or assistant clerk to the court in which the offense of driving under the influence 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 ~o the defendant's criminal trial for driving under the influence of intoxicants. "(m) The declaration of refusal or certificate under paragrap (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 pro- vided 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 of 90 days for a first offense and for six months for a second or subsequent offense or refusal within one year of the firs 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; provided that if the defendant shall plead guilty to a violation of Section 13-81, the court may dismiss the warrant "(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 suspension 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. 1976-3 -7 "(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. 13-81 shall be required to execute in favor of any person or corporation a waiver or release of liability in connection with the withdrawal of blood as a condition precedent to the withdrawal of blood as pro- vided 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 condition 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 possessing a valid license to conduct such tests, wit a type of equipment and in accordance with the methods approved by the State Health Commissioner. Such breath-testing equipment shall be tested for its accuracy by the State Health Commissioner's offic at least once every six months. Any individual conducting a breath test under the pro- visioms of this section and as authorized by the State Health Commissioner shall issue a certificate which will~ indicate that th test was conducted in accordance with the manufacturer's specifi- cations, the equipment on which the breath test was conducted has been tested within the past six months and has been found to be accurate, 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 individua conducting the breath test, shall be admissible in any court in an' criminal proceeding as evidence of the alcoholic content of the blo 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. 1976-3 -8 "(s) The steps herein set forth relating to the taking, han- dling, identification and disposition of blood or breath samples are procedural in nature and not substantive. Substantial complian therewith shall be deemed to be sufficient. Failure to comply with any one or more of such steps or portions thereof, or a variance in ithe 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 th evidence in the case, provided that the defendant shall have the right to introduce evidence on his own behalf to show noncompliance with the aforesaid procedure or any part thereof, and that as a result his rights were prejudiced." This ordinance shall take effect immediately upon its adoption. Introduced: January 20, 1976 Adopted: February 3, 1976 Attest: