COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Overton and Senior Judge Duff 

Argued at Alexandria, Virginia 

STEVEN L. WHIBLEY 

 MEMORANDUM OPINION* BY 

v. Record No. 1515-97-4 JUDGE CHARLES H. DUFF 

 OCTOBER 27, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA 

Alfred D. Swersky, Judge 

 Dale Edwin Sanders (Sanders & Associates, on 

brief), for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Steven L. Whibley appeals his conviction for driving while 

intoxicated. He contends that the trial judge erred in admitting 

into evidence a certificate of breath alcohol analysis. We 

disagree and affirm. 

 I. 

 "The admissibility of evidence is within the broad 

discretion of the trial court, and a ruling will not be disturbed 

on appeal in the absence of an abuse of discretion." Blain v. 

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988) 

(citation omitted). "On appeal, we review the evidence in the 

light most favorable to the Commonwealth, granting to it all 

reasonable inferences fairly deducible therefrom." Martin v. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 

 So viewed, the evidence proved that, on January 5, 1997, 

Officer Gerald Ford stopped appellant's car and arrested him for 

driving while intoxicated. Within two hours of the arrest, Ford 

advised appellant of the implied consent law. Ford told 

appellant that "the Virginia consent law requires [appellant] to 

take a breath test . . . [that] he is required to take a breath 

test by driving on Virginia highways." Although Ford could not 

recall verbatim what he told appellant, he testified that he 

"read the implied consent" law "from a card" that was issued by 

the police department. Ford averred that he "always" reads "the 

implied consent . . . from the card." Ford was unable to produce 

the card at trial. 

 Appellant objected to the admission of the certificate of 

analysis because there was "[in]adequate evidence that an 

accurate version of the implied consent was read" to appellant. 

Appellant argued that Ford's coercive manner of telling appellant 

he had to take the test while he was under arrest and Ford's 

failure to advise appellant of the consequences for refusing to 

submit to a breath test invalidated his consent. Appellant 

contends that he has the power to refuse such a test, and without 

being fully informed of the implied consent law, including the 

consequences for refusing, he was unaware that he could refuse 

the test. Accordingly, argues appellant, he was unable to give 

"[a]ctual, voluntary consent." Appellant presented no evidence. 
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 The trial judge took the matter under advisement. By 

opinion letter, he admitted the certificate of analysis, denied 

appellant's motion to strike, and found appellant guilty of 

driving while intoxicated. 

 II. 

 A. Any person . . . who operates a 

motor vehicle upon a highway . . . 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 . . . content of his blood, if he 

is arrested for violation § 18.2-266 . . . 

within two hours of the alleged offense. 

 B. Any person so arrested for a 

violation of § 18.2-266 (i) or (ii) or both, 

. . . shall submit to a breath test. If the 

breath test is unavailable or the person is 

physically unable to submit to the breath 

test, a blood test shall be given. The 

accused shall, prior to the administration of 

the test, be advised by the person 

administering the test that he has the right 

to observe the process of analysis and to see 

the blood-alcohol reading on the equipment 

used to perform the breath test. 

Code § 18.2-268.2. 

 In Caldwell v. Commonwealth, 205 Va. 277, 136 S.E.2d 798 

(1964), the defendant argued "that the trooper failed to advise 

him 'that he had the right to refuse to take [a] blood test.'" 
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Id. at 280, 136 S.E.2d at 801. The Supreme Court held as 

follows: 

 Under the [implied consent] statute any 

person who operates a motor vehicle upon a 

public highway in this Commonwealth shall be 

deemed to have consented to, and shall be 

entitled to, have a sample of his blood taken 

for a chemical analysis to determine its 

alcoholic content when arrested for operating 

a motor vehicle while under the influence of 

alcohol. In Walton v. City of Roanoke, 204 

Va. 678, 133 S.E.2d 315 [(1963)], we said 

that "the defendant was not compelled under 

§ 18.1-55 to submit to the blood test. He 

had a choice of either allowing the test to 

be made or refusing it." We adhere to that 

holding. However, the statute does require 

an accused to submit to a blood test in order 

to avoid prosecution for refusing to take it, 

which may result in the suspension of his 

operator's license if such refusal is found 

to be unreasonable. He has the power to 

refuse to submit to the test but no right to 

refuse it. Since there exists no "right to 

refuse" to submit to a blood test, the 

trooper was without authority to advise 

defendant that he had such a right. 

Furthermore, defendant orally consented to 

submit to the test so that it was not 

incumbent upon the trooper to advise him of 

the consequences if he refused. Had 

defendant refused to submit to the test, it 

then would have been the duty of the trooper 

to advise the accused that "refusal to do so 

constitutes grounds for the revocation of the 

privilege of operating a motor vehicle upon 

the highways of this State". 

Id. at 281, 136 S.E.2d at 801 (applying Code § 18.1-55, the 

former implied consent statute) (emphases added). 

 The consent to submit to a blood or breath 

test, granted when a person operates a motor 

vehicle upon the highways, "is not a 

qualified consent and it is not a conditional 

consent, and therefore there can be no 

qualified refusal or conditional refusal to 

take the test." The mere fact that under the 
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statute "an accused is afforded an 

opportunity to establish the reasonableness 

of his refusal does not operate to dilute the 

consent previously given, or convert that 

consent into a qualified or conditional one." 

 Illustrative of a refusal that would be 

deemed reasonable is when "a person's health 

would be endangered by the withdrawal of 

blood." 

Cash v. Commonwealth, 251 Va. 46, 49-50, 466 S.E.2d 736, 738 

(1996) (quoting Deaner v. Commonwealth, 210 Va. 285, 292-93, 170 

S.E.2d 199, 204 (1969)). 

 Appellant does not contend that his arrest was made without 

probable cause. Moreover, the evidence established that he was 

arrested within two hours of the offense, therefore, he was 

deemed to have consented to a breath test under the implied 

consent law. 

 Code § 18.2-268.3 allows a person accused of driving while 

intoxicated to refuse to take a breath or blood test. Even if 

Ford failed to advise appellant of the consequences of refusal, 

appellant had no right to refuse to take a required blood alcohol 

test. See Caldwell, 205 Va. at 281, 136 S.E.2d at 801. 

Moreover, because appellant did not refuse to take the test, Ford 

was not required to inform him of the consequences pursuant to 

Code § 18.2-268.3. After being advised that drivers on Virginia 

highways are required to take a breath test, appellant consented 

to take the test. Therefore, Code § 18.2-268.3 was not 

implicated, and Ford was not required to inform appellant that he 

could refuse the test. 
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 Moreover, Ford substantially complied with the implied 

consent statute. 

 The steps set forth in [Code] §§ 18.2-268.2 

through 18.2-268.9 relating to taking, 

handling, identifying, and disposing of blood 

or breath samples are procedural and not 

substantive. Substantial compliance shall be 

sufficient. Failure to comply with any steps 

or portions thereof, . . . shall go to the 

weight of the evidence and shall be 

considered with all the evidence in the case; 

however, the defendant shall have the right 

to introduce evidence on his own behalf to 

show noncompliance with the aforesaid 
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 procedures or any part thereof, and that as a 

result his rights were prejudiced. 

Code § 18.2-268.11. 

 The burden is on the Commonwealth to show that it 

substantially complied with the requirements of the statute. See

Kemp v. Commonwealth, 16 Va. App. 360, 365, 429 S.E.2d 875, 878 

(1993). Ford testified that he advised appellant of Virginia's 

implied consent law from a preprinted card issued by the police 

department. Therefore, at a minimum, the Commonwealth 

established that Ford substantially complied with the implied 

consent statute. 

 For the foregoing reasons, the trial judge did not err in 

admitting the certificate of breath alcohol analysis. 

Accordingly, we affirm the decision of the trial judge. 

 Affirmed.