COURT OF APPEALS OF VIRGINIA

Present: J udges Petty, Alston and Russell Argued at Lexington, Virginia

KENNETH EDWARD HICKS MEMORANDUM OPINION  BY v. Record No. 1093-16-3 J UDGE ROSSIE D. ALSTON, JR. AUGUST 29, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY C. Randall Lowe, Judge Robert M. Galumbeck (Galumb eck and Kegley, Attorneys, on brief), for appellant. Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Kenneth Edward Hicks (“appellant ”) appeals his conviction for d riving while under the influence of drugs, second offense within ten years, in violati on of Code §§ 18.2-266 and 18.2-270. Appellant argues that t he trial court erred by faili ng to suppress the certificate of analysis from evidence, and by denying his motion to strike the evidence and motion to set aside the jury verdict. We disagree , and affirm the decision of the trial court.
B ACKGROUND On March 12, 2015, while driving on Interstate 81, in Roanoke, Virginia, appellant hit a car parked on the side of the r oad. He was subsequently arrest ed for driving under the influence of drugs. At a jury trial on May 18, 2016, Mark Rudd, of the S afety Patrol Service, testified that he responded to the scene of an accident on Interstate 81. Whe n he got there he observed a vehicle parked on the side of the road with some “scuffs” on th e side of it, and a vehicle pulled

 Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - over in front of it. Rudd further testified that he observed appellant walking out into the lanes of Interstate 81, “a li ttle bit staggering” and “pacing back and f orth.” Rudd got in between appellant and the road to preven t appellant from being hit by acar, and stayed with appellant until the police arrived. Trooper Matthew Hagy also testif ied. He stated that when he a rrived on the scene he saw two vehicles on the sid e of Interstate 81. The damage to one v ehicle was on the driver’s side, and the damage to the offending ve hicle was on the passenger’s side. This damage corresponded with a collision. Hagy stated tha t when he talked to appellant , appellant admitted to being the driver of the offending vehicle . Hagy observed that appellant seemed unsteady on his feet while they talked. Appellant also had gl assy eyes and slurred speech . Hagy conducted five different field sobriety tests on appellant , and appellant could not succ essfully complete any of them. After the tests, Hagy read appell ant his Miranda rights and pla ced him under arrest. Thereafter, appellant told Hagy that he ha d taken Valium, Percocet, and Neu rontin before the crash. Hagy informed appellant of the implied consent law, and appellant ag reed to have his blood drawn. Hagy testified that he did not have a search warrant for appell ant’s blood draw. Appellant’s counsel objected at th is point, arguing that appel lant did not waive his Miranda rights, and thus, his blood should not have been drawn. The trial court overruled appellant’s objection, finding t hat appellant freely, voluntari ly, and intelligent ly acknowledged his understanding of the Mira nda warnings issued by Hagy, and t hen responded to Hagy’s questions. Dr. James Kuhlman, a forensic t oxicologist, testified about th e laboratory testing of appellant’s blood samples, and the certificate of analysis. Du ring Kuhlman’s voir dire , outside the presence of the jury, Kuhl man stated that when a blood test kit arrives at the laboratory, a toxicologist receives it, and ve rifies that it is unopened. Th e toxicologist will then open the test- 3 - kit and begin to create a recor d by generating a laboratory acc essioning number, which is entered into the laboratory’s computer s ystem. The certificate of anal ysis presented at trial included the name of the toxicologist who ope ned the blood sample, in this c ase, Davis Blanchard. Kuhlman testified that he did not direc tly oversee this process. Howev er, Kuhlman stated that at the end of the laboratory work, he goes bac k, retrieves the evidence, and looks at it to ensure that the toxicologists did not make any mistakes. Kuhlman stated that Chad Harris performed the first test of app ellant’s blood sample on March 20, 2015. Harris performed a n alcohol analysis, and no e thanol was detected. Harris also conducted the next part of the te sting process, called amino as say, on March 27, 2015. This process allows toxico logists to test seve ral samples at once, w hich eliminates any negative samples. While Kuhlman did not obse rve Harris performing this process, he testified that he knew that it was done correctly because the other procedure that we do has very rigid quality control criteria. The re are positive samples, there are negati ve known samples, one with each one. We have criteria for -- in this particular cases the instrument is rating a visual absorbance; it has to be a certain concentration t o be acceptable. It has to be b etween a certain range to be acceptable for us to call it negative and positive. You can’t physically do any of that. You load the sample in the instrument and a whole bunch of computer printout s . . . [u]nless you have all the data it’s not like you can chan ge it. Kuhlman further testified that he knew the blood sample that wa s tested belonged to appellant because of the chain of custody. Kuhlman stated that if Harris did not follow the chain of custody, he would know because two tests are run on each blood sample, and any discrepancies would be caught. Kuhlman stated that his job as th e examiner is to determine if the two sets of results match. In this case, the results produced by the toxicologists showed that appellant tested positive for two different types of drugs. One toxicologist di d the Oxycodone analysis, and- 4 - another toxicologist did the Diazepam, Nordiazepam, Oxazepam, and Temazepam analysis. Kuhlman stated that once he rece ives these results he does “wha t’s called an examination. I have to inspect all of the data, and t hat is the print outs, the info rmation that’s coming from all the various instruments, check the chain of custody documentation, check to make sure all of the quality control procedures were followed, because it’s all docu mented.” Kuhlman further testified: “I’m the one that’s making those decisions determin ing it and then deciding how to report it on the final [c]ertific ate of [a]nalysis.” Kuhlman a lso testified that the Director of the Department of Forensic Science (“DFS”) designated him to sign c ertificates of analysis. The laboratory uses quality contro l measures to determine wheth er toxicologists conduct laboratory work according to protocol. Kuhlman testified that another part of his job as an examiner is not only to ensure tha t the toxicologists follow al l the quality controls, but also to make certain that the report the y submit coincides with the blo od sample analyzed. Kuhlman stated that his job in court is to testify to the data and resu lts as provided in t he certificate of analysis. After the voir dire examination, appellant made a motion to suppress the certificat e of analysis. He argued that appell ant was left with no one to cro ss-examine about when the laboratory received appellant’s blood sample, and what conditio n it was in, because Kuhlman did not actually handle that porti on of the testing. Specifically, appellant argued that it is significant that he could not cross-examine t he necessary witnesses in his case and that this issue was addressed by the Supreme Court of the United States in Bullcomi ng v. New Mexico, 564 U.S. 647 (2011). The Code explicitly sta tes that a certificate of a nalysis must be signed by the designee of the Direc tor of DFS. Appellant stated that Kuhlman ’s signature on the certificate of analysis merely asserts that he is a DFS employee. According t o appellant, the Commonwealth also did not provide any documenta tion that the Director of DFS designated Kuhlman.- 5 - Additionally, appellant attempted to raise “ one other objection ” with respect to admission of the certificate of ana lysis, stating as follows: I’m just raising this one, Judge , because it’s in front of the Supreme Court right now and I wan t to put it on the record -- a nd that was that the test was gi ven by [i]mplied [c]onsent without a search warrant being issued unde r the [Schmerber] case. And as I said, I’m only raising that because it’s currently before the Supreme Court. However, appellant did not identif y the case that was in front of the Supreme Court by name. He also did not state the argument , or arguments, before the Supre me Court in that case. At no time in the trial court did appellantever argue that his consent to have his blood drawn was constitutionally invalid and had been coerced from him because he faced a criminal penalty if he had refused under Virginia’s implied consent statute. The Commonwealth responded to app ellant’s arguments, stating th at with respect to the designation issue, at the bottom of the certificate of analysis , by Kuhlman’s signature, it says “this duty has been delegated to m e by the Director of the Depa rtment of Forensic Science.” Additionally, Kuhlman gave swor n testimony that the Director of DFS designated him to sign certificates of analysis. As f or the chain of custody issue, t he Commonwealth argued that the trial court should rely on C ode § 19.2-187.01 which states: A report of analysis duly attest ed by the person performing suc h analysis or examination by any laboratory operated by the Divis ion of Consolidated Laboratory Service s, the Department of Forensic Science, or any of its regi onal laboratories shall be prima facie evidence in a criminal or civ il proceeding as the custody of th e material described therein from th e time such material is recei ved by an authorized agent of such laboratory until such material i s released subsequent to suc h analysis or examination. Kuhlman testified at trial, and he is the one ultimately respon sible for the findings in the certificate of analysis. He exam ines everything, and determine s whether the findings of each toxicologist are consistent wit h DFS’s quality control regulati ons.- 6 - The trial court overruled appe llant’s motion, finding that the certificate of analysis offered by the Commonwealth was in compliance with Code §§ 19.2 -187, 18.2-268.7, and 19.2-187.1(B)(i). The trial court also found that Kuhlman revi ewed the entire process of testing appellant’s blood for drugs and tha t he used this as the basis for his analysis and opinion. The trial court determined that the issues raised by appellant go t o the weight of his analysis, and not to the admissibility of the certificate of analysis. During Kuhlman’s direct exami nation, the trial court qualified him as an expert in the field of forensic toxicology, as well as performance toxicology , a subset of forensic toxicology focused on how drugs and/or alcohol a ffect a person’s performan ce or behavior. Kuhlman testified that when he examine d the blood sample, he could dete rmine whether it contained any drugs or alcohol. He found Diazepam (or Valium) at 1.4 milligr ams per liter; Nordiazepam at .57 milligrams per liter, Oxazepam at .015 milligrams per liter , and Temazepam at .028 milligrams per liter. Nordiazepam, Oxazepam, and Temazepam are all milder forms of Diazepam, and occur as the body metabolizes Diazepam. Appellan t’s blood sample also contained Oxycodone at .28 milligrams per liter. Kuhlman state d that he would qualify 1.4 milligrams per liter of Diazepam as a high level. Kuhlman test ified that the Oxycodone contained in appellant’s blood, is not a low dose . . . . This w ould be the type of blood concentrations that you mi ght expect in a person who has long-term chronic pain. I don’t know anything about [appellant ] . . . . So this could be a high level , it could be a normal lev el for a patient. It’s not low for anyone , but it could be normal for h im or it could be too much. I don’t know. Kuhlman further testified that a person can experience side eff ects from medications like Oxycodone or Diazepam, even if they are taking it at a prescrib ed dosage. Kuhlman then testified about the s ide effects of the drugs foun d in appellant’s system. He stated that the side effects of Diazepam include: drowsines s, dizziness, poor concentration,- 7 - poor hand-eye coordination, and a slow reaction time. Diazepam can also cause individuals to have slurred speech and poor bala nce. The degree to which an i ndividual exhibits these side effects depends on the person and t heir experience with the dru g. Kuhlman stated that the side effects of Oxycodone include drow siness and a lack of coordinat ion. Kuhlman testified that the side effects of Diazepam and Oxycodone can affect a person’s ab ility to operate a motor vehicle because [o]perating a motor vehicle is very much a multitasking event .

. . . When you introduce a depressant dr ug into that process it slows [down your reaction tim e]. So you’re not going to make a decis ion as quickly as you should. You’re not going to react as quickly as you should. You’re not going to antic ipate the behavior of ano ther vehicle or pedestrian there on the side. You’re not going to b e able to perform as quickly. The degr ee and the more pronounced the depressant effects the more it’s going to affect your ability t o drive safely. Kuhlman further testified that staggering or a lack of balance, lane drifting, and slurred speech are consistent with the side effects of Diazepam and Oxycodone. However, Kuhlman also stated that he does not know the specifi c effects of the drugs on appe llant, and he could not say that Diazepam and Oxycodone would have prevented appellant from driv ing safely. At the close of the Commonwealth ’s case-in-chief, appellant mad e a motion to strike the evidence. He argued that the Commonwealth did not prove that a ppellant was under the influence of drugs at the time of the offense because Kuhlman t estified that he did not know appellant’s tolerance for Diazepam and Oxycodone. Appellant st ated that the Commonwealth did not present any evidence about the accident, which is neces sary to know whether appellant could safely operate a motor ve hicle. Appellant also argued th at the Commonwealth did not provide any evidence that the d rugs found in appellant’s system were self-administered. The trial court denied appella nt’s motion, stating that the iss ues appellant argued were issues for the jury.- 8 - Appellant did not present any e vidence. The jury found appell ant guilty of driving under the influence of drugs, second offe nse in ten years. After the jury issued its verdict, appellant made a motion to set aside the guilty verdict ba sed on the argu ments previously presented in his motion to strike. The trial cour t overruled the motion citing its previous rulings. The jury recommended a sentence of twe lve months in jail. On June 9, 20 16, the trial court entered an order accepting the jury’s reco mmendation, and sentencing appel lant to twelve months in jail. This appeal followed.
A NALYSIS I. Appellant Waived His Objecti on to the Trial Court’s Admissi on of the Certificate of Analysis Based on the Fact that th e Commonwealth Did Not Have a Search W arrant. Appellant argues that the tri al court erred in denying his moti on to suppress the certificate of analysis because the Commonwealth did not have a search warr ant to obtain appellant’s blood in violation of the Fourth Amend ment. Appellant states that a search warrant is necessary because he would be exposed to criminal penalties if he refused to have his blood drawn, pursuant to Code § 18.2-268.3. Appellant further contends that , under the Supreme Court’s decision in Birchfield v. N orth Dakota, 136 S. Ct. 2160 (2016), which was decided after his trial, the potential criminal penalty nega tes his consent, invalidatin g the blood draw and the subsequent chemical analysis. T he Commonwealth argues that app ellant did not preserve this argument, and it is therefore barred from consideration by Rule 5A:18. We agree with the Commonwealth. Rule 5A:18 provides, in pertinen t part, that “[n]o ruling of th e trial court . . . will be considered as a basis for reve rsal unless an objection was stat ed with reasonable certainty at the time of the ruling, except fo r good cause shown or to enable th e Court of Appeals to attain the ends of justice.” Applying Rule 5A:18, we have consistently he ld that we “will not consider an argument on appeal which was not pr esented to the trial court.” Ohree v. Commonwealth, 26- 9 - Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). “The same argum ent must have been raised, with specificity, at trial befo re it can be considered on appea l.” Correll v. Commonwealth, 42 Va. App. 311, 314, 591 S.E.2d 712, 719 (2004). “Rule 5A:18 req uires a litigant to make timely and specific objections so that the trial court has ‘an opportu nity to rule intelligently o n the issues presented, thus avoiding unnece ssary appeals and reversals.’” Brown v. Commonwealth, 279 Va. 210, 217, 688 S.E.2d 18 5, 189 (2010) (quotin g West v. Commonwea lth, 43 Va. App. 327, 337, 597 S.E.2d 274, 278 (2004)). In this case, appellant never ar gued, either e xplicitly or impl icitly, at the trial court that a search warrant was necessary f or his blood draw because the spe cter of a criminal penalty for refusal invalidated his consent. When appellant made a motion to suppress the certificate of analysis his argument focused mai nly on the fact that he could not cross-examine every toxicologist whose testing affected the resu lts in the certificate of analys is. The only part of appellant’s argument that did not involve th e Confrontation Clause occurred when appellant stated: “the test was given by [i]mplied [c]onsent without a search warrant being issued under the [Schmerber] case. And as I said, I’m only rai sing that because it’s curren tly before the Supreme Court.” He never mentioned the case, Birch field, by name, he merely stated that a relevant case was “currently before the Supreme C ourt.” Birchfield actually invo lves three different petitioners whose appeals were consolidate d for consideration into one case . 136 S. Ct. at 2186. Birchfield deals with implied consent in various scenarios, including bloo d tests, breath tests, civil penalties, and criminal pena lties. Id. at 2183-86. Thus, evenif appellant’s oblique reference to a case “currently before the Supreme Court” were deemed sufficien t to identify Birchfield, appellant’s argument in the tri al court does not specifically i dentify which part of Birchfield applies to his case.- 10 - Appellant also argues, incorrec tly, that he can raise this issu e for the first time on appeal because it concerns a substantive constitutional right. The Su preme Court of Virginia has held, [i]f a criminal defendant fails t o preserve an issue in the tri al court, he can waive claimed violations of his constitutional right to be free of unreasonable searches a nd seizures under the Fourth Amendment . . . . Procedural defa ult principles, including Rules 5:25 and 5A:18, still apply, as do traditional finality principles protecting judgments no longer within t he trial cour t’s active jurisdiction. Jones v. Commonwealth, 293 Va. 29, 47-48, 795 S.E.2d 705, 716 ( 2017). In this case, appellant did not raise a timely objection t o the certificate of analysis based on the lack of a search warrant for the blood draw. As such, the trial court did not have an o pportunity to rule on this objection, and it was not preserved. Because appellant failed to raise th is specific argument in the trial court, we will not cons ider it now on appeal. II. The Trial Court’s Admission of the Certificate of Analysis If in Error, Was in Fact Harmless. Appellant argues that it was constitutional error to allow the certificate of analysis into evidence because appellant was deprived of his right to confron t witnesses against him, in violation of the Confrontation C lause. Assuming that the trial court erred in admitting the certificate of analysis into evi dence, this error was harmless. This Court has held that “[c]onstitutional error . . . is harml ess only when the reviewing court is “able to declare a be lief that it was harmless beyond a reasonable doubt.” Lavinder v. Commonwealth, 12 Va. App. 1003, 1006, 407 S.E.2d 910, 911 (1991 ) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). This Court further held: Use of the “beyond a reasonable doubt” standard, while an appropriate measure of confiden ce in fact finding, is an unusua l device to use in deciding questi ons of law. Like “preponderanc e of the evidence” and “clear and convincing evidence,” “beyond a reasonable doubt” is a relative and subjective standard suitabl e for measuring the probability of the occurrence of a past event. B ut, in determining if an erro r is harmless, a reviewing court does not decide the probability of the o ccurrence of a past event, i.e. if, in- 11 - fact, the defendant committed the crime charged. It determines , instead, whether, as a matter of law, this decision by the fact finder was affected by the error. If s o, the error is not harmless; i f not, the error is harmless. Id. As such, error, if any, was harmless in this case. Code § 18.2-266(iii) states that i n order to convict appellant of driving under the influence, the Commonwealth mus t prove that appellant drove “un der the influence of any narcotic drug or any other self-a dministered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degr ee which impairs his abilit y to drive or operate any motor vehicle.” It is not contested i n this case that appellant was driving. The Commonwealth proved appellan t’s impairment through the test imony of Rudd and Hagy. Rudd testified that when he a rrived at the scene of the accident on March 12, 2015, appellant was staggering a nd pacing near Interstate 81. Rudd a lso said that he stood between appellant and the road because he was afraid that appellant wou ld wander into the lanes of traffic and get hit by a passing car. Ha gy testified that when he arri ved on the scene, appellant admitted that he had been driving. Hagy a lso observed that the two cars involved had damage consistent with two cars colliding. Hagy tes tified that appellant had gla ssy eyes, slurred speech, and seemed unsteady on his feet. He also put appellant through fiv e field sobriety tests, and appellant failed to complete a ny of them. After Hagy read appe llant his Miranda rights, appellant admitted to Hagy that he had taken Valium, Percocet, and Neurontin. This evidence is sufficient to show that appellant was impaired. Appellant argues that any error in admitting the certificate of analysis was not harmless because its presence allowed Kuhlman to testify as to the impac t of the amount of substance in appellant’s blood, which may have affected his ability to drive . However, Kuhlman stated that he did not know the specific side effects of Diazepam and Oxyco done on appellant, thus, he could not testify as to whether a ppellant could safely drive wi th the drug levels found in his- 12 - system. Kuhlman did testify about t he side effects of the drug s found in appellant’s blood sample, including drowsiness, di zziness, poor concentration, sl urred speech, and a slow reaction time. These side effects are consistent with appellant’s physi cal appearance and behavior observed by Rudd and Hagy at the scene of the accident. The evidence without the certif icate of analysis was sufficien t to prove that appellant was driving under the influence. A ppellant admitted to taking Vali um, Percocet, and Neurontin. He also exhibited the side effect s of these drugs. Thus, we decli ne to address the merits of this assignment of error and find that any error in this case was ha rmless beyond a reasonable doubt. III. The Trial Court Did Not Err in Denying Appellant’s Motion to Strike the Evidence and Motion to Set Aside the Verdict. Appellant argues that the trial court erred because the eviden ce in this case was insufficient to prove that appellant was guilty beyond a reason able doubt of driving under the influence of drugs, second offe nse in ten years. Thus, he cont ends that the trial court should have granted his motion to strik e the evidence and his motion t o set aside the jury verdict. We disagree. When considering the sufficien cy of the evidence on appeal in a criminal case, this Court views the evidence “in the light most favorable to the Commonwe alth and give[s] it all reasonable inferences fairly de ducible therefrom.” Higginbotha m v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On review, this Court do es not substitute its own judgment for that of the trier of fact. See Cable v. Commonwea lth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992). The trial court’s ju dgment “will not be set a side unless it appears from the evidence that the judgment is pl ainly wrong or without evidence to support it.” Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Appellant relies on the case of Clemmer v. Commonwealth, 208 V a. 661, 159 S.E.2d 664 (1968), to argue that the Commonw ealth provided no evidence tha t appellant was driving under- 13 - the influence of drugs. However, Clemmer can be distinguished from the present case because in Clemmer there was no eviden ce that the appellant operated hi s vehicle under the influence of alcohol, or some self-administer ed drug, despite his bizarre be havior. Id. at 666, 159 S.E.2d at 667. In this case, a Safety Ser vice Patrol officer, who had be en dispatched to an accident, found appellant on the side of the road. Rudd observed appellant sta ggering and pacing by the road, and even had to get between appellan t and the interstate becaus e he was afraid appellant would walk into a lane, and get hit by a passing car. When Trooper H agy arrived on the scene he testified that appellant admitted that he had been driving the offending vehicle. Hagy also stated that appellant seemed unstea dy on his feet, and had glassy eyes and slurred speech. Hagy put appellant through five field sobr iety tests, all of which, appe llant failed. The Supreme Court of Virginia ex plained that Clemmer stands for the proposition “that there can be no conviction under the statute unless there was e vidence tending to establish the agency responsible for the erratic behavior of the accused.” M iller v. Commonwealth, 214 Va. 689, 690, 204 S.E.2d 268, 269 (1974). After Hagy arrested appe llant and read him his Miranda rights, appellant admitted that he took Valium, Percocet, and N eurontin before the crash. This admission is consistent with the drugs found in appellant’s sys tem. Also, appellant’s behavior, observed by Hagy and Rudd, is consiste nt with the side effects that Kuhlman mentioned may accompany Diazepam and Oxycodone. These side effects include s low reaction times, slurred speech, dizziness, and drowsiness . It is reasonable to believe in this case that the drugs appellant ingested caused his impairment. Based on all the evidence, the trial court’s decision in this case was not plainly wrong, and was s upported by the evidence presen ted at trial. Thus, the decision of the tri al court is affirmed.- 14 - C ONCLUSION We find that we do not need to add ress the merits of the first two assignments of error because appellant did not properly preserve for appeal his argu ment that the certificate of analysis should not be admitted into evidence because the Commo nwealth did not have a search warrant to draw his blood. We f urther find that any error by the trial court in admitting the certificate of analysis into evi dence was harmless. We hold th at the trial court did not err when it denied appellant’s motion to strik e and motion to set aside the verdict. Thus, appellant’s conviction of driving while under the influence of drugs, secon d offense within ten years, in violation of Code §§ 18.2-266 and 18.2-270, is affirmed. Affirmed.