COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Willis and Senior Judge Hodges 

Argued at Alexandria, Virginia 

JERRY D. MATTHEWS 

v. Record No. 1281-94-4 MEMORANDUM OPINION* BY 

 JUDGE WILLIAM H. HODGES 

COMMONWEALTH OF VIRGINIA OCTOBER 24, 1995 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Arthur B. Vieregg, Jr., Judge 

 William D. Pickett (P. Clark Kattenburg, P.C., on 

brief), for appellant. 

 Marla Lynn Graff, Assistant Attorney General 

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

brief), for appellee. 

 Jerry D. Matthews (appellant) was convicted by a jury of 

driving while intoxicated, pursuant to Code § 18.2-266. On 

appeal, appellant contends that the trial judge erred in allowing 

the Commonwealth to present evidence of his intoxication after 

ruling that the blood test results were inadmissible. We agree 

and reverse the conviction. 

 The facts are not in dispute. On September 16, 1993, 

Trooper Marcus McClanahan saw appellant's vehicle weave in and 

out of traffic lanes. When appellant stopped his vehicle, 

McClanahan approached and noticed that appellant smelled of 

alcohol. Appellant had red eyes, a flushed face, and slurred 

speech. Appellant fell down when he exited his vehicle. After 

failing field sobriety tests, McClanahan took appellant to a 

 

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

designated for publication. 
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detention center where he was advised of the implied consent law. 

 Appellant elected to take a breath test, but, because appellant 

belched several times, the test could not be properly 

administered. Appellant was then offered a blood test. 

Appellant consented to the test. After a technician drew blood 

and placed it in two vials, McClanahan orally advised appellant 

of his right to have one of the vials tested by an independent 

laboratory. McClanahan did not give appellant a copy of the form 

informing appellant of his right to an independent test and 

listing approved independent labs, and appellant did not have the 

second vial of blood tested. In a letter opinion, the trial 

judge found that McClanahan's failure to give appellant a copy of 

the form precluded admission of the test results. The trial 

judge ruled that, even if the "substantial compliance" 

requirement applied, "McClanahan's verbal summary of 

[appellant's] right to obtain an independent analysis of his 

blood does not constitute 'substantial compliance' of the 

statute's requirements." 

 The trial judge also addressed the issue of waiver in his 

letter opinion. He explained that 

 [e]vidence introduced by the Commonwealth 

suggests that [appellant] was intoxicated 

during the taking of his blood, so much so 

that he was disorderly and had to be 

restrained. Under such circumstances, the 

Trooper could not have reasonably concluded 

that [appellant] was capable of making a 

meaningful decision to waive his right to 

have a sample of his blood tested by an 

independent laboratory, a right afforded him 

by the General Assembly. Furthermore, by 
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failing to leave the form with [appellant], 

the Trooper deprived [appellant] of the 

opportunity to exercise that right when he 

became sober. 

 Despite his decision to preclude admission of the 

Commonwealth's blood test results, the trial judge allowed the 

Commonwealth to present other evidence of intoxication. Based on 

McClanahan's testimony, the trial judge found appellant guilty. 

 "[T]he failure to comply with [the] requirement of the 

statute [that an accused be given the form] negates the 

possibility of 'substantial compliance.'" Artis v. City of 

Suffolk, 19 Va. App. 168, 171, 450 S.E.2d 165, 167 (1994) 

(reversing conviction and dismissing charge where police officer 

showed form to accused and returned it to file). "[B]ecause the 

independent test results could have been exculpatory," mere 

suppression of the Commonwealth's test results "is [an] 

inadequate [remedy]." Shoemaker v. Commonwealth, 18 Va. App. 61, 

64, 441 S.E.2d 354, 356 (1994). See also Sullivan v. 

Commonwealth, 17 Va. App. 376, 378, 437 S.E.2d 242, 243 (1993); 

Breeden v. Commonwealth, 15 Va. App. 148, 150, 421 S.E.2d 674, 

675 (1992) (failure to provide results of test requested deprives 

accused of significant method of establishing his innocence). 

 The facts of this case established that appellant was not 

given or offered the requisite form and did not knowingly and 

intelligently waive his right to an independent analysis. 

Accordingly, we reverse appellant's conviction and dismiss the 

charge against him. See Artis, 19 Va. App. at 170-71, 450 S.E.2d 
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at 166 (absent evidence of knowing and intelligent waiver or that 

accused was offered form and refused to take it, failure to give 

accused form required reversal and dismissal). 

 Reversed and dismissed.