COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Annunziata 

Argued at Norfolk, Virginia 

ROBYN LYNN CASTILLO 

 OPINION BY 

v. Record No. 2444-94-1 JUDGE LARRY G. ELDER 

 DECEMBER 29, 1995 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

William F. Rutherford, Judge 

 James O. Broccoletti (J. F. Hoen; Zoby & 

 Broccoletti, P.C., on brief), for appellant. 

 Kathleen B. Martin, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General, on 

 brief), for appellee. 

 Robyn L. Castillo (appellant) appeals her convictions for 

driving under the influence of alcohol in violation of Code 

§ 18.2-266 and involuntary manslaughter in violation of Code 

§ 18.2-36.1(A). Appellant asserts (1) the trial court erred in 

admitting into evidence the results of her breath alcohol 

analysis, although she was not arrested for driving under the 

influence within two hours of the alleged offense, as required by 

Code § 18.2-268.2; and (2) the evidence was insufficient to 

support her involuntary manslaughter conviction. Because the 

trial court erroneously admitted the certificate of analysis and 

improperly relied on the test results' statutory presumption of 

intoxication, we reverse both convictions. 
 2 

 I. 

 FACTS 

 Appellant was driving an Isuzu Trooper on October 1, 1993 on 

Shore Drive in Norfolk. At approximately 7:05 a.m., Leila Mae 

Dossey was crossing Shore Drive when appellant's vehicle struck 

her. The impact threw Dossey over the hood of the vehicle and 

onto the windshield before Dossey hit a sign post and fell to the 

ground. Dossey was pronounced dead at the scene. 

 One eyewitness, David Mason, saw appellant's vehicle strike 

Dossey, brake "a little bit" without skidding, change lanes as 

Dossey rolled off the hood, and then continue down the street. 

Another eyewitness, Omar Capodiferro, was driving next to 

appellant and witnessed appellant's vehicle immediately before it 

struck Dossey, whom Capodiferro observed crossing the street. 

There was no evidence of excessive speed or erratic driving other 

than appellant's swerving in an attempt to avoid hitting the 

victim. 

 Police located appellant after Capodiferro reported the 

accident, and Detective Randy Million observed appellant walking 

on a street near her parked vehicle. Million testified 

appellant's speech was slurred, she smelled of alcohol, she was 

"very unsteady" on her feet, her clothes were in disarray, and 

her eyes were glassy and watery. Million arrested appellant on 

the charge of "hit and run fatality" at 8:45 a.m. 

 Officer R.L. Burnette spoke with appellant at her vehicle, 
 3 

where he advised her of her Miranda rights at approximately 

9:05 a.m. Burnette smelled the strong odor of alcohol about 

appellant, saw that her stockings were torn, and noticed her 

chest was visible through her clothing. Officer Burnette 

informed appellant of Code § 18.2-268.2, the implied consent law, 

at 9:07 a.m. 

 Appellant supplied the officers with various versions of her 

whereabouts that day and the prior evening. Appellant admitted 

she visited three bars the prior evening and consumed four White 

Russian mixed-alcoholic beverages. Appellant denied any 

involvement in the hit and run incident. 

 Police transported appellant to the police station for the 

administration of a breath alcohol test. Appellant refused to 

allow Officer Jim Murphy, a licensed breath test operator, to 

administer the breathalyzer test, as she continued to cough 

despite his contrary instructions. When a magistrate informed 

appellant she would be charged with refusal to take the 

breathalyzer test if she did not cooperate, appellant acquiesced 

to a breathalyzer test at 10:05 a.m. Appellant's blood alcohol 

level registered at .11 percent. 

 Police did not arrest appellant for driving under the 

influence of alcohol or involuntary manslaughter; rather she was 

directly indicted for these offenses on March 2, 1994, five 

months after they occurred. A bench trial was held. Appellant 

objected to the admission of the breathalyzer test results, 
 4 

asserting that the police did not arrest her for driving under 

the influence within two hours of the offense, as required by 

Code § 18.2-268. Appellant also argued she never voluntarily 

chose to undergo a breathalyzer test instead of a blood test. 

The trial court overruled the objection and admitted into 

evidence the certificate of analysis and the test operator's 

testimony. The trial court also overruled appellant's motion to 

strike the evidence and found appellant guilty of both offenses. 

 II. 

USE OF BREATHALYZER TEST RESULTS 

 Virginia's "implied consent" law, as it existed at the time 

of the offense, provided in pertinent part: 

(A) Any person . . . 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 [a] violation of 

§ 18.2-266 [driving under the influence] . . . or of a 

similar ordinance within two hours of the alleged 

offense. 

Code § 18.2-268.2(A)(emphasis added). See Wendel v. 

Commonwealth, 12 Va. App. 958, 961, 407 S.E.2d 690, 692 

(1991)("One safeguard . . . requires that an accused be arrested 

within two hours of the alleged offense in order for the test 

results to be admissible at trial"). If the blood or 

breathalyzer test reveals a particular level of blood alcohol 

content (.10 percent at the date of the instant offense), the 
 5 

Commonwealth is entitled to a rebuttable presumption that the 

defendant was intoxicated. Code § 18.2-269; Overbee v. 

Commonwealth, 227 Va. 238, 243, 315 S.E.2d 242, 244 (1984); 

Bowman v. Commonwealth, 201 Va. 656, 662, 112 S.E.2d 887, 891 

(1960). 

 The Commonwealth concedes that because police failed to 

arrest appellant for driving under the influence of alcohol 

within two hours of the accident, the certificate of analysis was 

inadmissible at trial. However, the Commonwealth asserts that 

other evidence presented, including the test operator's 

testimony, proved appellant's intoxication, and, therefore, the 

introduction of the certificate was harmless error. The 

Commonwealth also contends exigent circumstances justified the 

administration of the breathalyzer test. We disagree with the 

Commonwealth. 

 A. 

 HARMLESS ERROR 

 Three cases guide our analysis of the harmless error issue: 

Thomas v. Town of Marion, 226 Va. 251, 308 S.E.2d 120 (1983); 

Overbee v. Commonwealth, 227 Va. 238, 315 S.E.2d 242 (1984); and 

Durant v. City of Suffolk, 4 Va. App. 445, 358 S.E.2d 732 (1987), 

all decided under former Code § 18.2-268, the predecessor to 

current Code § 18.2-268.2. 

 In Thomas, the defendant was involved in a motor vehicle 

accident and was shortly thereafter interrogated at the hospital. 
 6 

 A police officer noticed that the defendant smelled strongly of 

alcohol, and the defendant admitted having consumed alcoholic 

beverages earlier that day. Thomas, 226 Va. at 253, 308 S.E.2d 

at 121. Police served an arrest warrant on the defendant three 

hours after the accident, at which time the defendant submitted 

to a breath test. His blood alcohol content registered .17 

percent. Id. at 253, 308 S.E.2d at 121-22. The Commonwealth 

introduced the test results at the defendant's jury trial over 

his objection, and he was convicted of driving under the 

influence of alcohol. Id. at 252-53, 308 S.E.2d at 121-22. 

 The Supreme Court reversed the conviction, stating, "[s]ince 

the arrest was untimely, the defendant is not deemed to have 

consented to the testing of his breath under the 'implied 

consent' law." Id. at 254, 308 S.E.2d at 122. The Court held 

receipt of the certificate into evidence was improper and 

recognized the prejudicial effect the rebuttable presumption of 

intoxication had on the fact finder. 

 Because it is probable the jury attached great 

weight to the incriminating information in the 

certificate, admission of the exhibit was reversible 

error. Therefore, we do not reach the question [of] 

whether other evidence of intoxication, standing alone, 

is sufficient to sustain the drunk driving conviction. 

Id.

 The next year, the Supreme Court visited the same issue when 

it decided Overbee. In Overbee, police found the defendant 

parked in an emergency lane on a highway at 9 p.m. 227 Va. at 
 7 

240, 315 S.E.2d at 243. A police officer smelled alcohol on the 

defendant's breath and saw that his eyes were red; the defendant 

stated that he had consumed one beer. Id. After police arrested 

the defendant at 9:13 p.m., they administered a breathalyzer 

test, which showed the defendant's blood alcohol content to be 

.16 percent. Id. at 241, 315 S.E.2d at 243. The defendant 

maintained he consumed no alcohol prior to parking his vehicle 

but had consumed wine only after stopping the vehicle. The 

defendant moved to suppress the breathalyzer test results and the 

test operator's testimony on the ground that he had not been 

arrested within two hours of "operating" a vehicle while under 

the influence of alcohol. The trial court denied the motion, and 

the jury found the defendant guilty of driving under the 

influence of alcohol. Id. at 242, 315 S.E.2d at 243. 

 The Supreme Court reversed the defendant's conviction, 

holding that he was not operating his truck when arrested. 

Therefore, the Court held that the test certificate was 

inadmissible. Id. at 242, 315 S.E.2d at 244. The Court 

recognized, "[i]f the certificate of analysis of the breath test 

were admissible, the Commonwealth would be entitled to a 

rebuttable presumption that [the defendant] was intoxicated, 

since his blood-alcohol content was greater than 0.10%." Id. at 

243, 315 S.E.2d at 244 (citing former Code § 18.2-269(3)). The 

Overbee Court then attempted to determine whether the defendant's 

guilt or innocence could be "determined from the other evidence 
 8 

of his condition at the time of the alleged offense." Id. at 

244, 315 S.E.2d at 244-45. The Court concluded it could not 

answer this question, which mandated a reversal of the case. 

We cannot say that the evidence, exclusive of the 

certificate of analysis, was insufficient as a matter 

of law to support [the defendant's] conviction. Nor 

can we say that the evidence, without the certificate, 

was so overwhelming as to render harmless the error in 

admitting the certificate. 

Id. at 245, 315 S.E.2d at 245. See also Essex v. Commonwealth, 

228 Va. 273, 286, 322 S.E.2d 216, 223 (1984)(stating that where a 

blood alcohol test was not conducted in accordance with former 

Code § 18.2-268, the test results could be used as probative 

evidence of intoxication without a statutory presumption of 

intoxication). 

 Finally, in Durant, this Court reversed the defendant's 

conviction for driving under the influence of alcohol after 

employing the harmless error analysis used by the Supreme Court 

in Overbee. In Durant, which was a bench trial, the facts showed 

that the defendant was "swerving all over the road," as a police 

officer followed him for "five or six miles." When taken into 

custody, the defendant had a strong odor of alcohol about his 

person, his speech was "'confused,'" and "'his balance and 

walking ability were somewhat vague.'" 4 Va. App. at 446-47, 358 

S.E.2d at 733. In Durant, this Court determined, for reasons 

unimportant to the instant case, that the defendant was not 

arrested for driving under the influence of alcohol pursuant to a 
 9 

warrant or a valid exception to the warrant requirement. Id. at 

448, 358 S.E.2d at 734. Therefore, the defendant was not legally 

arrested within two hours of the alleged offense and was not 

bound under the statute to submit to the breathalyzer test. "The 

result of the breathalyzer test administered to [the defendant] 

should not have been admitted in evidence at his trial." Id. at 

449, 358 S.E.2d at 734 (footnote omitted). 

 The Court also considered: 

whether the admission of the breathalyzer test 

constituted harmless error. We are unable to say what 

effect the breathalyzer evidence had on the trial 

court's decision; therefore, we cannot find as a matter 

of law that the result would not have been different if 

such evidence had not been considered by the trial 

court. The error was not harmless . . . . 

Id. (emphasis added). 

 Under the facts of this case, we adopt the reasoning 

expressed by this Court in Durant. We conclude, after examining 

the record, that we are unable to determine whether the trial 

court applied Code § 18.2-269's rebuttable presumption of 

intoxication to prove appellant's intoxication. While the 

Commonwealth presented other independent evidence of appellant's 

intoxication, "[w]e are unable to say what effect the 

breathalyzer evidence had on the trial court's decision." 

Durant,1 4 Va. App. at 449, 358 S.E.2d at 734. Although in a 

 

 1 We recognize that the Supreme Court has also affirmed a 

conviction for driving under the influence of alcohol, under a 

harmless error analysis, without discussing the presumption of 

intoxication that accompanies certain results. In Brooks v. City 

of Newport News, 224 Va. 311, 295 S.E.2d 801 (1982), the Supreme 
 10 

bench trial, "the trial judge is presumed to disregard 

prejudicial or inadmissible evidence," Hall v. Commonwealth, 14 

Va. App. 892, 902, 421 S.E.2d 455, 462 (1992)(en banc), this 

presumption only controls "in the absence of clear evidence to 

the contrary." Id. See Mason v. Commonwealth, 219 Va. 1091, 

1098, 254 S.E.2d 116, 120, cert. denied, 444 U.S. 919 (1979); 

Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 

(1977); Brown v. Commonwealth, 8 Va. App. 126, 133, 380 S.E.2d 8, 

12 (1989); Cole v. Commonwealth, 16 Va. App. 113, 116, 428 S.E.2d 

303, 305 (1993). 

 In this case, the trial court admitted the certificate after 

ruling that the Commonwealth had complied with the implied 

consent law. Subsequent to the certificate's admission, the 

Commonwealth failed to offer evidence on the significance of the 

test results in the certificate. Clear evidence therefore 

 

Court held that introduction of the test results was in error. 

However, the Court stated the "result of a breath analysis is but 

auxiliary proof which may tend to corroborate evidence of the 

objective symptoms" of intoxication. Id. at 316, 295 S.E.2d at 

804. The Court also stated: 

 Under the facts and circumstances of 

this case, the trial court's erroneous ruling 

admitting the certificate was not fatal to a 

conviction. The testimony at the trial 

clearly showed that there was no room for 

reasonable doubt about [the defendant's] 

actual condition at the time of his arrest. 

The evidence of his guilt was clear and 

compelling, and the erroneous ruling of the 

trial court was harmless. 

Id. We note that the Supreme Court decided Brooks before Thomas

and Overbee. 
 11 

implies that the trial court applied the statutory presumption of 

intoxication; we cannot say from the facts and circumstances that 

this error did not affect the verdict. Lavinder v. Commonwealth, 

12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)(en banc). 

Thus, we disagree with the Commonwealth's assertion that the 

trial court's admission of the test results into evidence was 

merely harmless error. 
 12 

 B. 

 EXIGENT CIRCUMSTANCES 

 The Commonwealth argues that the breathalyzer test results 

were admissible despite the Commonwealth's non-compliance with 

the statute because exigent circumstances existed. In support of 

its argument, the Commonwealth cites Bowman v. Commonwealth, 201 

Va. 656, 112 S.E.2d 887 (1960)(decided under former Code 

§ 18-75.1), and Tipton v. Commonwealth, 18 Va. App. 370, 444 

S.E.2d 1 (1994). In Bowman, the defendant was involved in a car 

accident. He was informed that he would be charged with driving 

under the influence of alcohol and had a right to submit to a 

test to determine his blood alcohol level. Bowman, 201 Va. at 

657-58, 112 S.E.2d at 888-89. The defendant requested a blood 

test and lapsed into a coma shortly thereafter, before his 

arrest. The certificate of analysis, which showed the 

defendant's blood alcohol level to be .26 percent, was introduced 

at trial over his objection that he was not arrested within two 

hours of the offense and the sample was taken before his arrest. 

 The trial judge found appellant guilty of driving under the 

influence of alcohol. The Supreme Court affirmed the conviction 

and approved the introduction of the test results, along with 

trial court's use of the accompanying presumption of 

intoxication, noting that "unusual circumstances caused [the 

officer] to delay the arrest for humane reasons." Id. at 661, 

112 S.E.2d at 891. 
 13 

 The Commonwealth correctly asserts that Bowman allowed the 

use of test results which were taken pursuant to the exigent 

circumstances exception and allowed the statutory presumption to 

be applied even where the Commonwealth presented no additional 

evidence to explain the test results. However, Bowman was based 

on "unusual circumstances" relating to "humane reasons" 

benefitting the defendant, which the Supreme Court held justified 

the delay in arresting the defendant. 

 Since Bowman, the Supreme Court has decided Thomas, Overbee, 

and Essex. In Essex, the Supreme Court held that although the 

defendant's blood alcohol test was not taken in accordance with 

former Code § 18.2-268, the test results could be introduced as 

"other relevant evidence" of drunk driving. 228 Va. at 286, 322 

S.E.2d at 223. The Court wrote that while the test evidence was 

probative, it: 

raised no legal presumption of intoxication. Code 

§ 18.2-269 expressly provides that the presumptions it 

creates arise only when a blood-alcohol test is 

conducted "in accordance with the provisions of [former 

Code] § 18.2-268." The record of the pretrial hearing 

shows, and the Attorney General concedes, that the 

hospital test was not conducted in such manner. Yet, 

the trial court, borrowing from the language of 

§ 18.2-269(3), instructed the jury that "[i]f there was 

at the time zero point 10 percent or more of alcohol in 

the accused's blood it shall be presumed that the 

accused was under the influence of alcoholic 

intoxicants." Since the only evidence to support that 

instruction was derived from the test performed at the 

hospital, we hold that the instruction constituted 

prejudicial error in the trial of the drunken driving 

charge. 

Id. (footnote omitted)(emphases added). 
 14 

 In Tipton v. Commonwealth, this Court affirmed the 

defendant's involuntary manslaughter conviction. The defendant 

was involved in a fatal two-car accident and underwent a blood 

alcohol test. The trial court recognized that the certificate of 

the blood test analysis was inadmissible because no valid arrest 

occurred within two hours after the accident. 18 Va. App. at 

372, 444 S.E.2d at 2. However, the trial court found exigent 

circumstances justified the taking of the defendant's blood. The 

trial court allowed the Commonwealth to introduce the results of 

the blood test through testimony of the chemist who performed the 

test. Id. The certificate of analysis was not introduced, nor 

was any presumption applied. 

 This Court held that the defendant's "alcohol blood reading 

was properly obtained pursuant to the exigent circumstances 

exception," not former Code § 18.2-268(B), as the delay necessary 

to obtain a search warrant to obtain a blood sample for a blood 

test may have resulted in the destruction of valuable evidence. 

Id. at 373, 444 S.E.2d at 3. Importantly, the Commonwealth 

presented independent expert testimony showing that the 

defendant's blood alcohol content would cause a driver to 

"experience a loss of information processing skills, diminished 

tracking skills, some loss of peripheral vision, and slowed 

reaction." Id. at 372-73, 444 S.E.2d at 2. 

 The Tipton case stands in sharp contrast to both Bowman and 

the instant case. In Tipton, although the Commonwealth proved 
 15 

appellant's intoxication with the aid of the test results, it did 

so without the introduction of the certificate of analysis and 

the accompanying statutory presumption. Instead, the 

Commonwealth presented other independent testimony interpreting 

the test results. 

 In this case, the Commonwealth never presented expert 

testimony of the sort presented in Tipton to explain the 

significance of the test results. Therefore, assuming without 

deciding that exigent circumstances justified seizure of 

appellant's person and the taking of her breath for analysis,2

the Commonwealth nevertheless failed to introduce independent 

evidence of the significance of the test results. Without such 

evidence, we are unable to determine whether the trial court 

improperly relied on the statutory presumption of intoxication. 

 III. 

 SUFFICIENCY OF EVIDENCE TO SUPPORT INVOLUNTARY MANSLAUGHTER 

 The trial court found appellant guilty of involuntary 

manslaughter in violation of Code § 18.2-36.1, which stated at 

the time of the offense, "[a]ny person who, as a result of 

driving under the influence in violation of subdivision (ii), 

(iii), or (iv) of § 18.2-266, unintentionally causes the death of 

another person, shall be guilty of involuntary manslaughter." 

 

 2 The Commonwealth argues the dissipating nature of alcohol 

in blood mandated that the police act quickly to preserve 

evidence of the crime. See Tipton v. Commonwealth, 18 Va. App. 

370, 374, 444 S.E.2d 1, 3 (1994). 
 16 

Code § 18.2-36.1(A)(emphasis added). Code § 18.2-266 stated, at 

the time of the offense: 

 It shall be unlawful for any person to drive or 

operate any motor vehicle, engine or train (i) while 

such person has a blood alcohol concentration of .10 

percent or more by weight by volume as indicated by a 

chemical test administered as provided in this article, 

(ii) while such person is under the influence of 

alcohol, (iii) while such person is under the influence 

of any narcotic drug or any other self-administered 

intoxicant or drug of whatsoever nature, or any 

combination of such drugs, to a degree which impairs 

his ability to drive or operate any motor vehicle, 

engine or train safely, or (iv) while such person is 

under the combined influence of alcohol and any drug or 

drugs to a degree which impairs his ability to drive or 

operate any motor vehicle, engine or train safely. 

In a prosecution for involuntary manslaughter, the Commonwealth 

must prove an "'accidental killing which, although unintended, is 

the proximate result of negligence so gross, wanton, and culpable 

as to show a reckless disregard for human life.'" Keech v. 

Commonwealth, 9 Va. App. 272, 275, 386 S.E.2d 813, 814 

(1989)(quoting King v. Commonwealth, 217 Va. 601, 607, 231 S.E.2d 

312, 316 (1977)). However, in a prosecution under Code 

§ 18.2-36.1(A), as in this case, the Commonwealth is obligated to 

prove the accused drove "under the influence in violation of 

subdivision (ii), (iii), or (iv) of § 18.2-266." Pollard v. 

Commonwealth, 20 Va. App. 94, 99, 455 S.E.2d 283, 286 

(1995)(citing Code § 18.2-36.1(A)). 

 The reasoning applied in Section II, supra, is equally 

applicable here. On this record, we are unable to determine 

whether the trial court applied the statutory presumption of 
 17 

intoxication. The trial court allowed the breathalyzer test 

results to be introduced into evidence as being in compliance 

with the implied consent statute. Unlike Tipton, no expert 

testimony in the case explained the significance of the test 

results. While the Commonwealth presented persuasive evidence of 

appellant's intoxication apart from the test results, we are 

unable to conclude that the trial court's reliance upon the test 

results and the presumption of intoxication were harmless in 

finding that appellant acted with the criminal negligence 

necessary to support an involuntary manslaughter conviction. 

 Accordingly, we reverse both convictions and remand for 

further proceedings if the Commonwealth be so advised. 

Reversed and remanded.