19770913 1977-30 ORDINANCE No. 1977-30
AN ORDINANCE AMENDING SECTION 13-82
OF THE FAIRFAX CITY CODE
BE IT ORDAINED by the City Council of the City of Fairfax,
Virginia that Section 13-82 of the Code of the City of Fairfax be,
and it hereby is, amended and reenacted to read in its entirety as
follows;
"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 operati~
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 ant
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 Sectio~
13-81 within two hours of the alleged offense. Any person so
arrested shall elect to have either the breath or blood sample take
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 office
that a person who operates a motor vehicle upon a public highway i~
this City shall be deemed thereby, as a condition of such operatio~
to have consented to have a sample of his blood or breath taken fol
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
1977-30 -2
sample of his blood or breath for such tests, the arresting officel
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 certified as prescribed in paragraph (j), then no blood
or breath sample shall be taken even though he may thereafter
request same.
"(d) Only a physician, registered professional nurse,
graduate laboratory technician or a technician or nurse designated
by order of a circuit court 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 steriliz~
which will not affect the accuracy of the test, or using chemicall~
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 withdra
according to recognized medical procedures; and provided further
that the foregoing shall not relieve any such person from liabilit~
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 o
the person taking the blood sample, and the date and time the bloo~
1077-30 -3
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 containe
and sealed, and shall transport or mail one of the vials forthwith
to the Division. The officer taking possession of the other con-
tainer (hereinafter referred to as second container) shall,
immediately after taking possession of the 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 blood
in the second container, and a list of those laboratories and thei
addresses, approved by the Division; such form shall contain a
space for the accused or his counsel to direct the officer possess.
lng such second container to forward that container to such approv
laboratory for analysis, if desired. The officer having the secon.
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 labora
tory of the accused's choice, in which event the officer shall do
so) shall deliver the second container to the chief police officer
of the City, and the chief police officer who received 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 writin
on the form provided hereinabove, direct the 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 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.
1077-30 -4
"(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
the container then the officer shall destroy such container.
"(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 certifi-
cate 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 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
1077 -5
the blood sample was placed, the certificate as provided for in
this section shall, when duly attested by the Director of the
Division or 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
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 withdrawing 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 sub-
sequently convicted for violation of Sec. 13-81, the amount charge~
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 breat!
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 b'
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.
1977-30 -6
"(j) The form referred to in paragraph (c) shall contain a
brief statement of the law requiring the taking of a blood or
breath 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
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 failure, if found to be unreasonable, constitutes grounds for
the revocation of such person's license to drive. The committing
or issuing justice, clerk 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.
"(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 the 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 para-
graph (k), as the case may be, shall be prima facie evidence that
1977-30 -7
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 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 ninety days for a first offense and for
six months for a second or subsequent offense 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; provided, that if the defenda~
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.
"(p) The procedure for appeal and trial shall be the same
as provided by law for misdemeanors; if requested by either party,
trial by jury shall be as provided in Article 4 of Chapter 15
(Sec. 19.2-260 et seq.) of Title 19.2 of the 1950 Code of Virginia
as amended, and the City shall be required to prove its case
beyond a reasonable doubt.
"(q) No person arrested for a violation of Sec. 13-81 shall
be required to execute in favor of any person or corporation a
1977-30
-8
waiver or release of liability in connection with the withdrawal
of blood and as a condition precedent 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 condition at the time of the alleged offense.
"(rl) Chemical analysis of a person's breath, to be con-
sidered valid under the provisions of this section, shall be per-
formed by an individual possessing a valid license to conduct
such tests, with 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 office at least once every six months.
Any individual conducting a breath test under the
provisions of this section and as authorized by the State Health
Commissioner shall issue a certificate which will indicate that
the test was conducted in accordance with the manufacturer's
specifications, the equipment on which the breath test was con-
ducted 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 certificat
as provided for in this section, when duly attested by the autho-
rized individual conducting the breath test, shall be admissible
in any court in any criminal 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. A copy of
such certificate shall be forthwith delivered to the accused.
1977-30
-9
"(s) The steps herein set forth relating to the taking,
handling, identification, 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 portions thereof,
or a variance in the 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 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 adop-
tion.
Introduced: September 6, 1977.
Adopted: September 13, 1977.
Attest:
0 VCfty Clerk