COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Coleman and Bumgardner 

Argued at Salem, Virginia 

JACOB JACKSON FELTS 

 MEMORANDUM OPINION* BY 

v. Record No. 1997-98-3 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 OCTOBER 5, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF GRAYSON COUNTY 

J. Colin Campbell, Judge 

 James T. Ward (Joseph H. McGrady; McGrady & 

McGrady, on briefs), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Mark L. Earley, Attorney General, 

on brief), for appellee. 

 Jacob Jackson Felts (appellant) was convicted of aggravated 

involuntary manslaughter, in violation of Code § 18.2-36.1(B), 

by causing death as the result of driving an automobile while 

under the influence of alcohol. On appeal, he argues the trial 

court erred in refusing to suppress the certificate and results 

of his blood alcohol analysis. For the following reasons, we 

affirm. 

I. 

 "In reviewing a trial court's denial of a motion to 

suppress, '[t]he burden is upon [the defendant] to show that 

 

 * Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication. 
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th[e] ruling, when the evidence is considered most favorably to 

the Commonwealth, constituted reversible error.'" McGee v. 

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) 

(en banc) (citation omitted). While we are bound to review de

novo the ultimate questions of reasonable suspicion and probable 

cause, we "review findings of historical fact only for clear 

error1 and . . . give due weight to inferences drawn from those 

facts by resident judges and local law enforcement officers." 

Ornelas v. United States, 517 U.S. 690, 699 (1996) (footnote 

added). 

 The evidence established that Trooper James Blevins 

(Blevins) received a dispatch at 11:26 p.m. to investigate an 

accident in Grayson County, Virginia. Upon his arrival at the 

accident scene, Blevins found appellant's wrecked vehicle, which 

had been traveling southbound on Highway 89. He described the 

accident as follows: 

[The car] had run off the right shoulder of 

the roadway traveling two hundred and 

seventy-six (276) feet. . . . Then it had 

reentered the roadway as it was traveling 

South and gone, was going broadside for one 

hundred and ninety (190) feet before it 

struck the bank. Then it went on another 

sixty-six (66) feet, struck a culvert in a 

driveway. At this time, the vehicle went 

airborne and crossed a woven wire 

fence. . . . Went airborne for one hundred 

and fifty (150) feet, then it came back in, 

 

 1 "In Virginia, questions of fact are binding on appeal 

unless 'plainly wrong.'" McGee, 25 Va. App. at 198 n.1, 487 

S.E.2d at 261 n.1 (citations omitted). 
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to the ground and made a large area in the 

field. It went back in the air. Traveled 

approximately seventy-five (75) more feet 

and continued on, crossed a, through a fence 

and struck some pine trees, two hundred and 

twenty-five (225) feet from where it had 

come down from being airborne for a hundred 

and fifty (150) feet. The total distance of 

this accident measured nine hundred seven 

(907) feet. 

The car came to rest "on its top after it struck a tree." The 

weather was clear, and the road was dry. Blevins found a wine 

bottle and loose beer bottles on the ground at the scene near 

the vehicle. Commonwealth's Exhibit 9, a photo of the inside of 

the car, showed beer bottles inside the vehicle. A passenger in 

appellant's car, Carl Moser, was pronounced dead at the scene.

 When Blevins arrived, rescue workers "had [appellant] 

loaded" in their emergency vehicle to transport him to Twin 

County Regional Hospital. At the hospital, medical personnel 

attended to appellant’s injuries. "[T]hey told [Blevins] that 

[appellant] was going to be taken to Baptist Hospital pretty 

soon." Blevins advised appellant of his Miranda rights and of 

the implied consent law, after which appellant voluntarily 

agreed to take a blood test. At 2:46 a.m., a lab technician 

withdrew the blood. The parties stipulated that the blood 

sample was taken three (3) hours and twenty-six (26) minutes 

after the accident. An analysis of the blood sample revealed 

appellant's blood alcohol content to be ".08% by weight by 

volume." 
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 Dr. James Valentour was qualified as an expert in 

toxicology. Based on minimum and maximum dissipation rates, he 

opined that, at the time of the accident, appellant's blood 

alcohol would have been between "a .11 or .12 to as high as .19 

or .20." Valentour described how certain amounts of alcohol 

affect one's physical abilities. Based on his data, Valentour 

opined that appellant was under the influence of alcohol at the 

time of the accident. 

 The trial court refused to suppress the blood test results. 

However, it ruled that, because appellant was not timely 

arrested, "the results of the tests creates [sic] no legal 

presumption of intoxication." Because appellant "was being 

transported to another hospital in another state, . . . exigent 

circumstances justified the taking of the defendant's blood 

without a search warrant." The trial court relied solely on the 

testimony of the toxicologist to interpret and explain the 

significance of the blood alcohol content of appellant's blood. 

 Appellant was subsequently tried by the court and 

stipulated to the following: 

[I]f the Court considers the evidence of the 

blood together with the evidence presented 

by the Commonwealth at the suppression 

hearing and evidence contained in the 

transcript of the preliminary hearing, it 

would be sufficient to convict beyond a 

reasonable doubt of . . . some degree of 

involuntary manslaughter. 
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Although the trial court relied solely on the testimony of the 

toxicologist at the suppression hearing, he nevertheless 

admitted the certificate of analysis into the record at trial. 

Based on the evidence presented and accepting appellant's 

stipulation, the trial court convicted appellant of aggravated 

involuntary manslaughter, in violation of Code § 18.2-36.1. 

II. 

 Appellant contends that the trial court erred in refusing 

to suppress the results of the blood alcohol analysis. Because 

he was arrested over two hours after the alleged offense, 

appellant asserts that he did not consent to have his blood 

alcohol tested. Moreover, appellant contends that because he 

showed no indications that he was intoxicated, the officer had 

no probable cause to arrest him and take a blood sample based on 

exigent circumstances.2

 The Commonwealth concedes on appeal, as it did at trial, 

that because police failed to arrest appellant for driving under 

the influence of alcohol within two hours of the accident, the 

statutory presumptions of Code § 18.2-269 were inapplicable. 

2

 As a preliminary matter, the Commonwealth argues that Rule 

5A:18 bars appellant from arguing on appeal that Blevins had no 

probable cause to arrest him and take a blood sample based on 

exigent circumstances. We conclude from the transcript that the 

trial court specifically found that "exigent circumstances 

justified the taking of [appellant's] blood without a search 

warrant" and defense counsel objected to this ruling. 

Therefore, Rule 5A:18 does not bar our review of the merits of 

this appeal. See Wright v. Commonwealth, 4 Va. App. 303, 305, 

357 S.E.2d 547, 549 (1987). 
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However, the Commonwealth asserts that other evidence presented, 

including the testimony of the toxicologist and the photographs 

of the accident scene, proved appellant's intoxication at the 

time of the accident. 

 A person arrested for driving under the influence within 

two hours of such offense is deemed to have consented to a blood 

alcohol test. See Code § 18.2-268.2.3 Test results that are 

obtained in compliance with the requirements of Code 

§ 18.2-268.2 are entitled to certain rebuttable presumptions. 

See Code § 18.2-269.4 However, if an accused driver is not 

 3

 Code § 18.2-268.2 provides in pertinent part: 

Any person, whether licensed by Virginia or 

not, who operates a motor vehicle upon a 

highway, . . . in this Commonwealth shall be 

deemed thereby, as a condition of such 

operation, to have consented to have samples 

of his blood, breath, or both blood and 

breath taken for a chemical test to 

determine the alcohol, drug, or both alcohol 

and drug content of his blood, if he is 

arrested for violation of § 18.2-266 or 

§ 18.2-266.1 or of a similar ordinance 

within two hours of the alleged offense. 

 

4

 Code § 18.2-269 provides in pertinent part: 

 A. In any prosecution for [involuntary 

manslaughter under Code § 18.2-36.1,] . . . 

the amount of alcohol in the blood of the 

accused at the time of the alleged offense 

as indicated by a chemical analysis of a 

sample of the accused's blood or breath to 

determine the alcohol content of his blood 

. . . shall give rise to the following 

rebuttable presumptions: 

* * * * * * * 
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timely arrested, his or her consent is considered invalid, 

prohibiting the Commonwealth from relying on the statutory 

presumption. See Essex v. Commonwealth, 228 Va. 273, 286, 322 

S.E.2d 216, 223 (1984); Castillo v. Commonwealth, 21 Va. App. 

482, 490-91, 465 S.E.2d 146, 150 (1995). 

 The facts of the instant case are remarkably similar to 

those in Tipton v. Commonwealth, 18 Va. App. 370, 444 S.E.2d 1 

(1994). In both cases, the defendant was injured in an 

accident, was about to be transported for medical care, was read 

the implied consent law, and a blood sample was taken. See id. 

at 371-72, 444 S.E.2d at 2. In both cases, the blood tests were 

administered more than two hours after the accident, and the 

Commonwealth relied upon expert testimony to establish the blood 

alcohol level in each defendant's blood. See id. 

 Similar to Tipton, the Commonwealth in the instant case 

conceded at trial that it was not relying on the rebuttable 

presumption of Code § 18.2-269 to prove appellant's 

intoxication. See id. at 372, 444 S.E.2d at 2. Instead, the 

Commonwealth asserted that the officer was entitled to conduct a 

search of appellant and seize his blood because there was 

 

(3) If there was at that time 0.08 percent 

or more by weight by volume of alcohol in 

the accused's blood or 0.08 grams or more 

per 210 liters of the accused's breath, it 

shall be presumed that the accused was under 

the influence of alcohol intoxicants at the 

time of the alleged offense. 
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sufficient probable cause to justify a search and exigent 

circumstances existed to justify noncompliance with the warrant 

requirement of the Fourth Amendment.5 See id. at 372-73, 444 

S.E.2d at 2. 

 Based upon the rationale in Tipton, we conclude that the 

results of the blood alcohol analysis, as introduced through the 

testimony of the toxicologist, was properly admitted as other 

relevant evidence that appellant was driving under the influence 

of alcohol. Despite the absence of a timely arrest or warrant, 

a person may be required to submit to a search, here, a blood 

test, based on probable cause and exigent circumstances. See

id. at 373, 441 S.E.2d at 3 (noting that a blood test is a 

"search" within the meaning of the Fourth Amendment). Such 

warrantless searches do not violate any constitutional rights so 

long as the search is supported by probable cause, the evidence 

 5

 The Commonwealth's Attorney stated the following: 

We're not asking the Court to admit this 

blood analysis of the defendant under 

18.2-268 or any part of that for any 

presumption of its content. The 

Commonwealth would assert that this falls 

under other relevant evidence and by that 

we're not, the Commonwealth [concedes] that 

we do not get any presumption under [Code 

§ 18.2-269]. . . . And I guess we want to 

make it crystal clear, we're not asking [for 

the benefit of the presumption]. We don't 

think we can have that. We think any 

evidence as to the alcohol or the influence 

of alcohol would have to come in through 

basically the toxicologist. 
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is of an evanescent nature, and the means and procedures 

employed are reasonable. See Schmerber v. California, 384 U.S. 

757, 768-71 (1966); see also Tipton, 18 Va. App. at 373-74, 441 

S.E.2d at 3. Thus, 

exigent circumstances justif[y] warrantless 

seizure of a blood sample for alcohol level 

analysis when police ha[ve] probable cause 

to arrest and fear[ ] loss of evidence by 

dissipation of alcohol in the blood. 

However, a warrantless search of that kind 

will be upheld only if (1) the process is a 

reasonable one which is performed in a 

reasonable manner; (2) there was in advance 

"a clear indication that in fact [the 

evidence sought] will be found;" and (3) 

there were exigent circumstances, such as a 

need to take the test before the percentage 

of alcohol in the blood diminished. 

Tipton, 18 Va. App. at 373, 441 S.E.2d at 3 (citing Schmerber, 

384 U.S. at 766-72). 

 In this case, the presence of wine and beer at the scene 

inside the wrecked car, and the distance and manner that 

appellant's car traveled after leaving the road, established 

sufficient probable cause of involuntary manslaughter and 

driving under the influence to enable Blevins to obtain a 

warrant for a search of appellant. See Schmerber, 384 U.S. at 

768-71; Tipton, 18 Va. App. at 373-74, 441 S.E.2d at 3. Due to 

the evanescent nature of blood alcohol and because appellant was 

being transported to another hospital, we agree that exigent 

circumstances justified the warrantless arrest and search of 

appellant. See id. Moreover, because the Commonwealth relied 
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on expert opinion to explain the significance of appellant's 

blood alcohol level and did not rely on the presumption in Code 

§ 18.2-269, the trial court did not err in allowing the test 

results in evidence. See id. at 374, 444 S.E.2d at 3. 

Accordingly, we affirm appellant's conviction. 

 Affirmed.