PRESENT: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and Agee, 

JJ., and Russell, S.J. 

JOSHUA BRISTOL 

v. Record No. 060263 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 November 3, 2006 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In this appeal involving two criminal convictions based on 

a defendant’s alleged operation of a motor vehicle while under 

the influence of alcohol, we consider whether the circuit court 

erred in admitting a certificate of blood analysis. 

Joshua Bristol was tried in the Circuit Court of the City 

of Portsmouth for driving while under the influence of alcohol 

(DUI), in violation of Code § 18.2-266, and for maiming another 

as a result of driving under the influence, in violation of Code 

§ 18.2-51.4. At a bench trial, the Commonwealth offered in 

evidence a certificate of analysis of Bristol’s blood alcohol 

content (BAC) to establish a rebuttable presumption under Code 

§ 18.2-269 that Bristol was intoxicated at the time of the 

offenses. Over Bristol’s objection, the circuit court admitted 

the certificate of analysis, which showed that Bristol had a BAC 

of 0.11 by weight by volume. 

Bristol was convicted of both offenses. The circuit court 

sentenced Bristol for the felony maiming offense to a term of 

five years’ imprisonment, with two years and six months 

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suspended. The court also sentenced Bristol to 12 months in 

jail for the DUI offense. 

Bristol appealed his convictions to the Court of Appeals, 

arguing that the circuit court improperly admitted the 

certificate of analysis into evidence. A panel of the Court of 

Appeals agreed and reversed Bristol’s conviction, holding that 

the certificate of analysis had been improperly admitted into 

evidence because Bristol had not been arrested within three 

hours of the offenses as required by Code § 18.2-268.2(A). 

Bristol v. Commonwealth, 45 Va. App. 534, 612 S.E.2d 244 (2005). 

The Court of Appeals granted the Commonwealth’s petition 

for rehearing en banc and stayed the panel’s decision. Bristol 

v. Commonwealth, 45 Va. App. 673, 613 S.E.2d 480 (2005). On 

rehearing en banc, the Court of Appeals held that the circuit 

court properly admitted the certificate of analysis because 

Bristol was under arrest within three hours of the offenses as a 

result of submitting to a police officer’s authority at the 

hospital. Bristol v. Commonwealth, 47 Va. App. 584, 603, 625 

S.E.2d 676, 685 (2006). Bristol appeals from the Court of 

Appeals’ judgment. 

 The evidence at trial showed that on July 4, 2003, Bristol 

and his friends were drinking alcoholic beverages and playing 

pool at the Three Cheers Lounge in Portsmouth. When Bristol 

left the lounge around 1:45 a.m., he agreed to give Debra Fly a 

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ride on his motorcycle. Bristol drove his motorcycle around the 

lounge parking lot with Fly seated behind him as a passenger. 

Bristol’s vehicle reached speeds estimated between 50 and 80 

miles per hour. 

While still in the parking lot, Bristol drove directly into 

a crowd of people without reducing his vehicle’s speed. His 

motorcycle struck April Mapp, who was standing on the curb, 

causing her to be thrown into the air. As a result of the 

collision, Bristol fell off the motorcycle. 

When City of Portsmouth Police Officer J.M. Doyle responded 

to the scene about 1:56 a.m., Bristol and Mapp were both lying 

in the parking lot. Mapp had head and brain injuries and a 

broken leg. Bristol was conscious, but had abrasions and 

bruises on his face. According to a paramedic who responded to 

the scene, Bristol smelled of alcoholic beverages. 

At 2:50 a.m., Doyle went to the hospital to see Bristol, 

who was in a trauma unit waiting to be examined. Doyle observed 

that Bristol’s speech was slurred and that he smelled strongly 

of alcoholic beverages. 

At 2:56 a.m., Doyle told Bristol he was under arrest and 

informed him of the implied consent provisions of Code § 18.2-

268.2. Bristol indicated that he understood those provisions 

and, at 3:05 a.m., signed a form authorizing the hospital to 

3
draw a blood sample. Doyle did not take any measures at that 

time to restrain Bristol. 

Shortly thereafter, hospital personnel moved Bristol from 

the trauma unit to the hospital’s emergency room. Doyle 

accompanied Bristol to the emergency room and sat with him until 

a lab technician, Teresa Whitfield, arrived to draw Bristol’s 

blood. However, Doyle took no measures to restrain Bristol or 

his movements. When Whitfield asked Bristol if he understood 

that she was drawing a blood sample at the request of the 

police, Bristol indicated that he understood. Whitfield drew 

the blood sample from Bristol. 

After taking possession of the vials containing Bristol’s 

blood, Doyle returned to the police station to write a report of 

the parking lot incident. In that report, Doyle did not 

indicate that Bristol had been arrested. 

Soon after Doyle left the hospital, Officer James Eberts 

arrived and attempted to interview Bristol. However, Bristol 

was incoherent, his speech was slurred, and he was in pain from 

the accident. Eberts left the hospital without taking any 

further action regarding Bristol. When Bristol was released 

from the hospital later that day, he was not taken into police 

custody or brought before a magistrate. 

Two days later, Eberts telephoned Bristol and asked Bristol 

to come to the police station to be interviewed. Bristol went 

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to the police station and, after Eberts conducted an interview 

there, Bristol left without any further action by the police. 

About a month later, Bristol telephoned the police to inquire 

about Mapp’s condition. On none of these occasions did the 

police tell Bristol that he was under arrest or indicate that he 

would be charged with a criminal offense. 

In August 2003, the Division of Forensic Science completed 

a certificate of analysis after performing tests on the blood 

sample drawn from Bristol at the hospital after the accident. 

The certificate of analysis indicated that Bristol’s blood 

alcohol content at the time the sample was taken was 0.11 by 

weight by volume. 

A grand jury indicted Bristol on September 4, 2003. On 

September 11, 2003, Bristol presented himself at the police 

station and was taken into custody. 

On appeal, Bristol argues that the circuit court improperly 

admitted the certificate of analysis into evidence. Bristol 

contends that he was not arrested at the hospital on the date of 

the offenses, because he was not restrained by the police or 

taken before a magistrate. He asserts that because he was not 

validly arrested within three hours of the offenses as required 

by Code § 18.2-268.2(A), he did not impliedly consent to have 

his blood drawn. Therefore, Bristol maintains, a rebuttable 

presumption of intoxication did not arise under Code § 18.2-269. 

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In response, the Commonwealth argues that the certificate 

of analysis was properly admitted into evidence. The 

Commonwealth contends that by “telling Bristol that he was under 

arrest and advising him of the implied consent law, [Officer] 

Doyle asserted his lawful authority to arrest Bristol.” 

Therefore, the Commonwealth maintains, Bristol was under arrest 

at the hospital as soon as he consented to have his blood drawn, 

because that consent constituted a submission to Officer Doyle’s 

authority. We disagree with the Commonwealth’s arguments. 

We review de novo the issue of law whether the undisputed 

facts before us establish that the officers effected an arrest 

of Bristol. See United States v. Hamlin, 319 F.3d 666, 671 (4th 

Cir. 2003); United States v. Sinclair, 983 F.2d 598, 601 (4th 

Cir. 1993). The mere words of an officer stating to a suspect 

that he is “under arrest” are not sufficient to constitute an 

arrest. California v. Hodari D., 499 U.S. 621, 626 (1991); 

State v. Oquendo, 613 A.2d 1300, 1309-1310 (Conn. 1992). An 

arrest occurs when an officer physically restrains a suspect or, 

in the absence of physical restraint, the suspect submits to the 

officer’s assertion of authority and purpose to arrest. Hodari 

D., 499 U.S. at 626; White v. Commonwealth, 267 Va. 96, 104, 591 

S.E.2d 662, 666 (2004); Howard v. Commonwealth, 210 Va. 674, 

677, 173 S.E.2d 829, 832 (1970). 

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An arrest completed by a suspect’s submission to police 

authority must manifest the suspect’s complete surrender of his 

personal liberty to the officer’s authority. As we explained in 

Howard, “an arrest is made by the actual restraint of the person 

of the defendant or by his submission to the custody of an 

officer.” Id. at 677, 173 S.E.2d at 832; see also White, 267 

Va. at 104, 591 S.E.2d at 666. Thus, after an arrest, a 

suspect’s liberty is completely constrained, at least until a 

judicial officer has determined the issue of bail. Commonwealth 

v. Hill, 264 Va. 541, 547, 570 S.E.2d 805, 808 (2002). 

In the present case, it is undisputed that neither Officer 

Doyle nor Officer Eberts physically restrained Bristol at the 

hospital after Officer Doyle told Bristol that he was “under 

arrest.” Therefore, Bristol was arrested at the hospital only 

if his consent to the blood test constituted a complete 

surrender of his personal liberty in submission to Officer 

Doyle’s assertion of authority. We conclude that Bristol’s 

consent to the blood test was not such a surrender of his 

personal liberty. 

Bristol merely agreed to submit to a blood test. He did 

not make any statement nor did he act in a manner demonstrating 

a complete surrender of his personal liberty to Officer Doyle’s 

control. 

7
The events that occurred at the hospital confirm the 

limited nature of Bristol’s acquiescence. After Officer Doyle 

informed Bristol of the implied consent provisions of Code 

§ 18.2-268.2 and Bristol agreed to have the blood sample drawn, 

Doyle did not restrict Bristol’s movements in any manner. 

Officer Doyle merely accompanied Bristol to the emergency room 

where Bristol’s blood was drawn. Officer Doyle then left the 

hospital, taking no action to constrain Bristol’s personal 

liberty. Likewise, Officer Eberts did not act in a manner that 

could be construed as constraining Bristol’s personal liberty. 

Bristol left the hospital on his own, and the police did not 

take any immediate action to restrain him. Thus, Bristol’s 

consent to the blood test did not constitute a submission to 

police authority resulting in an arrest. 

The language of the implied consent statute lends further 

support to our conclusion. Under Code § 18.2-268.2(A), a person 

who operates a motor vehicle on a highway in Virginia is deemed 

to consent to have a sample of his blood or breath taken for 

chemical analysis if he is arrested for a violation of Code 

§ 18.2-266 or certain other related statutes within three hours 

of the alleged offense. This requirement is further detailed in 

subsection B of the statute, which states in relevant part that 

a person “so arrested . . . shall submit to a breath test” or, 

8
under specified circumstances, a blood test. Code § 18.2-

268.2(B). 

Under these provisions, a driver must be arrested within 

three hours of an offense before that driver may be required to 

submit to a breath or blood test. Because the driver’s timely 

arrest triggers the statutory consent requirement, the arrest 

must be completed before the driver may be required to take the 

test. Thus, based on this statutory language, a driver’s mere 

agreement to take a breath or blood test cannot constitute a 

functional component of the driver’s arrest. 

Accordingly, we hold that Bristol was not arrested within 

three hours of the offenses as required by the implied consent 

provisions of Code § 18.2-268.2. Therefore, the certificate of 

blood analysis obtained pursuant to that statute was 

inadmissible at trial. See Overbee v. Commonwealth, 227 Va. 

238, 242-43, 315 S.E.2d 242, 243-44 (1984); Thomas v. Town of 

Marion, 226 Va. 251, 254, 308 S.E.2d 120, 122 (1983). 

The Commonwealth argues, nevertheless, that Bristol’s blood 

test results were admissible under the “exigent circumstances” 

exception to the Fourth Amendment search warrant requirement. 

We find no merit in this argument. 

The mere fact that a defendant’s blood alcohol content 

might dissipate is insufficient, by itself, to support 

application of the “exigent circumstances” exception. The 

9
possibility that blood alcohol content may dissipate exists in 

every instance in which a driver has consumed alcoholic 

beverages. Moreover, the “exigent circumstances” exception 

advocated by the Commonwealth would undermine completely the 

implied consent provisions of Code § 18.2-268.2. A driver’s 

consent to take a blood or breath test would not be required, 

even when there is probable cause to arrest the driver for a 

violation of Code § 18.2-266 or a related statute, once it is 

determined that the driver has consumed alcoholic beverages. 

We also conclude that the Commonwealth’s reliance on the 

holdings in Schmerber v. California, 384 U.S. 757 (1966), and 

Tipton v. Commonwealth, 18 Va. App. 370, 444 S.E.2d 1 (1994), is 

misplaced. In Schmerber, unlike in the present case, the 

defendant was validly arrested before a blood sample was taken. 

Holding that there was “no time to seek out a magistrate,” the 

Supreme Court concluded that the seizure of the defendant’s 

blood was “an appropriate incident” of his arrest. Id. at 771. 

Because Bristol was not validly arrested before he submitted to 

the blood test, the reasoning employed in Schmerber is 

inapplicable here. 

Additionally, we reject the reasoning employed by the Court 

of Appeals in Tipton. There, the defendant had not been 

arrested within the time period required by the implied consent 

statute. Nevertheless, the Court of Appeals applied the 

10
analysis in Schmerber, holding that the defendant’s blood 

alcohol level was properly obtained pursuant to the exigent 

circumstances exception to the search warrant requirement. 18 

Va. App. at 374, 444 S.E.2d at 6. Under the facts in the 

present case, that reasoning effectively could undermine the 

implied consent procedures mandated by Code § 18.2-268.2 and 

render irrelevant the issue of a driver’s consent. Therefore, 

we conclude that evidence of Bristol’s blood alcohol content was 

not admissible under the “exigent circumstances” exception to 

the Fourth Amendment search warrant requirement, and that the 

circuit court erred in admitting into evidence the results of 

Bristol’s blood test. 

Finally, we disagree with the Commonwealth’s contention 

that the erroneous admission of Bristol’s blood test results was 

harmless error. It is probable that the circuit court, as the 

trier of fact, attached great weight to the information 

contained in the certificate. See Thomas, 226 Va. at 254, 308 

S.E.2d at 122. Therefore, we do not reach the issue whether the 

other evidence of intoxication, apart from the certificate of 

analysis, is sufficient to sustain Bristol’s convictions. Id.

For these reasons, we will reverse the Court of Appeals’ 

judgment and remand the case to that Court with direction that 

the matter be remanded to the circuit court for a new trial on 

both charges, if the Commonwealth be so advised. 

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Reversed and remanded.

JUSTICE LEMONS, with whom JUSTICE KINSER joins, dissenting. 

 Because I would hold that Bristol was arrested at the 

hospital, I respectfully dissent. 

 Events that transpired after the drawing of Bristol’s blood 

are irrelevant to the inquiry before us. Either Bristol was 

arrested at the hospital or he was not; the police failures 

thereafter do not affect the analysis in this case. 

"Whether an officer has probable cause to arrest an 

individual in the absence of a warrant is determined under an 

objective test based on a reasonable and trained police 

officer's view of the totality of the circumstances." Brown v. 

Commonwealth, 270 Va. 414, 419, 620 S.E.2d 760, 762 (2005). 

"[P]robable cause exists when the facts and circumstances within 

the officer's knowledge, and of which he has reasonably 

trustworthy information, alone are sufficient to warrant a 

person of reasonable caution to believe that an offense has been 

or is being committed." Taylor v. Commonwealth, 222 Va. 816, 

820, 284 S.E. 2d 833, 836 (1981). 

Around 1:56 a.m. on July 5, 2003, Officer Doyle was called 

to Three Cheers Lounge ("Three Cheers"). Officer Doyle knew 

Three Cheers served alcohol and that Bristol had been inside 

Three Cheers the night of the accident. Upon dispatch to the 

12
scene, Officer Doyle found Bristol lying in the parking lot in 

front of Three Cheers. Officer Doyle learned from witnesses at 

the scene that Bristol was "showing off" when he drove his 

motorcycle into a crowd of people, causing the injury for which 

he is now charged. When Officer Doyle arrived at the hospital 

where Bristol had been transported, he noticed Bristol's speech 

was slurred and that the smell of alcohol was "quite strong." 

Code § 18.2-266(ii) prohibits a person from operating a motor 

vehicle "under the influence of alcohol." The totality of the 

circumstances in this case would warrant a reasonable person to 

believe that Bristol was "under the influence of alcohol." 

Clearly, Officer Doyle had probable cause to arrest Bristol. 

Having established the requisite probable cause, the next 

question is whether Bristol was, in fact, arrested such that 

evidence of the certificate of blood analysis was admissible at 

trial pursuant to Code § 18.2-268.2(A). The majority holds that 

"Bristol was not arrested within three hours of the offenses as 

required by the implied consent provisions of Code § 18.2-

268.2," and therefore, "the certificate of blood analysis 

obtained pursuant to that statute was inadmissible at trial." 

Code § 18.2-268.2 does not define “arrest,” but “[w]ith a 

few statutory exceptions, . . . the common law relating to 

arrest is the law on that subject in Virginia.” Galliher v. 

Commonwealth, 161 Va. 1014, 1021, 170 S.E. 734, 736 (1933). 

13
This Court has held that: “Ordinarily, an arrest is made by the 

actual restraint of the person of the defendant or by his 

submission to the custody of an officer.” Howard v. 

Commonwealth, 210 Va. 674, 677, 173 S.E.2d 829, 832 (1970) 

(emphasis added). Officer Doyle told Bristol that he was under 

arrest before reading him the implied consent law. While 

Officer Doyle did not physically restrain Bristol, physical 

restraint is not necessary to constitute an arrest. See

California v. Hodari D., 499 U.S. 621, 626-27 (1991). An arrest 

occurs once a person "submits to the authority of the officer." 

White v. Commonwealth, 267 Va. 96, 104, 591 S.E.2d 662, 666 

(2004). 

The majority contends that Bristol's consent to the blood 

test was not a submission to Officer Doyle's authority. The 

majority concludes that "Bristol merely agreed to submit to a 

blood test. He did not make any statement nor did he act in a 

manner demonstrating a complete surrender of his personal 

liberty to Officer Doyle's control." However, the facts in the 

record indicate otherwise. 

Officer Doyle told Bristol he was under arrest. Officer 

Doyle confirmed Bristol's arrest by reading him the implied 

consent card which stated in relevant part that: 

Any person who operates a motor vehicle upon a highway 

as defined in 46.2-100 in this Commonwealth is deemed 

thereby as a condition of such operation to have 

14
consented to have samples of his blood and breath 

taken for chemical test to determine the alcohol and 

drug content of his blood if arrested within three 

hours of the alleged offense or violation . . . . He 

shall submit to a breath test unless the test is 

unavailable or you are physically unable to comply, in 

which case a blood test will be given. 

(Emphasis added.) Indicating he understood the card read to 

him, Bristol signed a consent form to have his blood drawn. 

The majority argues that the language of Code § 18.2-

268.2(A) "cannot constitute a functional component" of the 

arrest because the arrest itself "triggers the statutory consent 

requirement." However, in my view consent and submission are 

not analytically mutually exclusive. By consenting to have his 

blood drawn, Bristol submitted to Officer Doyle's authority. 

Code § 18.2-268.2(A) merely states that if arrested "within 

three hours of the alleged offense" "[a]ny person . . . who 

operates a motor vehicle upon a highway . . . in the 

Commonwealth shall be deemed . . . to have consented to have 

samples of his blood . . . taken." 

Notwithstanding the fact that Bristol submitted to Officer 

Doyle's authority when he signed the consent form, Bristol 

continued to submit to Officer Doyle's authority. Under Officer 

Doyle's authority, Bristol was "taken from the trauma area" and 

placed in an emergency department room. Officer Doyle sat in 

the room with Bristol until the lab technician arrived to draw 

Bristol's blood. Upon arrival, the technician informed Bristol 

15
that his blood was being drawn "for the police officer." 

Bristol told the lab technician that he understood this, and the 

technician proceeded to draw Bristol's blood. These actions 

were all completed in the presence of and pursuant to Bristol's 

submission to the authority of Officer Doyle. 

"[T]he test for existence of a 'show of authority' is an 

objective one: not whether the citizen perceived that he was 

being ordered to restrict his movement, but whether the 

officer's words and actions would have conveyed that to a 

reasonable person." Hodari D., 499 U.S. at 628. A reasonable 

person in Bristol's position at the hospital before getting his 

blood drawn would have perceived that his movement was 

restricted and that he was not free to leave. The successive 

actions taken by Bristol in this case constitute a clear 

submission to Officer Doyle's authority. 

The impracticability of the majority opinion is illustrated 

by asking a simple question: During the very brief time between 

announcing the arrest and obtaining consent to take blood, what 

more was the officer expected to do with a seriously injured 

person whom the officer has informed is under arrest? Was the 

officer to handcuff Bristol or restrain him in some other manner 

and risk interference with his medical care? While the majority 

emphasizes that the officers involved may have failed to follow 

up properly after arrest, the actions of the officers after 

16
obtaining the blood sample are not relevant to the determination 

whether he was arrested at the hospital. Either Bristol was 

arrested or he was not; subsequent failures on the part of the 

police do not have any bearing on this question. Unfortunately, 

motor vehicle operators who are both injured and intoxicated 

arrive at hospital emergency rooms on a regular basis in this 

Commonwealth. This majority opinion unnecessarily, and, I 

believe, incorrectly impedes law enforcement officers in the 

performance of their duties. 

Accordingly, I would affirm the judgment of the Court of 

Appeals. 

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