COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

CURTIS S. SNIDER 

 OPINION BY 

v. Record No. 0833-97-2 JUDGE JAMES W. BENTON, JR. 

 MARCH 3, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF AMELIA COUNTY 

Thomas V. Warren, Judge 

 Jonathan S. David (Joseph D. Morrissey; 

Morrissey, Hershner & Jacobs, on brief), for 

appellant. 

 Daniel J. Munroe, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Curtis S. Snider was convicted in a bench trial of operating 

a motor vehicle upon a public highway while under the influence 

of alcohol, in violation of Code § 18.2-266. He contends the 

trial judge erred by admitting into evidence the blood alcohol 

analysis because the procedure for extracting his blood did not 

substantially comply with statutory requirements. Snider also 

contends the evidence was insufficient to convict him of the 

crime. We disagree and affirm his conviction. 

 The evidence at trial proved that when State Trooper Olinger 

arrived to investigate a one-vehicle accident in Amelia County, 

Snider had walked away. When Snider returned to his vehicle, he 

told Trooper Olinger that he slid off the road while turning to 

avoid several deer. Trooper Olinger noticed that Snider's eyes 

were bloodshot and glassy and that his body had an odor of 
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alcohol. Although Trooper Olinger noticed that Snider's speech 

was slurred, she testified that Snider's speech could have been 

affected by an injury to his lip. Trooper Olinger testified that 

Snider denied consuming any alcohol after the accident and 

admitted that he consumed four beers before the accident. He 

said he consumed the last beer one-half hour before the accident. 

 Trooper Olinger arrested Snider and transported him to have 

a blood test performed. Trooper Olinger was present when a nurse 

withdrew Snider's blood for the test. When the Commonwealth 

offered as evidence the certificate of analysis of Snider's 

blood, Snider's defense counsel objected to its admission because 

Trooper Olinger did not know whether the nurse cleansed Snider's 

arm before extracting blood. The trial judge overruled the 

objection and admitted the certificate of analysis, which 

indicated that Snider's blood had an alcohol content of .10 by 

weight by volume. 

 In his defense, Snider testified that his car went into a 

ditch after he swerved to avoid several deer. When no one passed 

after twenty minutes, he retrieved a pack of six beers from his 

vehicle and began to walk. During a two-mile walk, he drank four 

or five beers. When asked if he remembered Trooper Olinger 

questioning him about drinking after the accident, Snider 

testified, "she asked me, but I can't remember the before or 

after . . . . I said that I had been drinking." 

 The trial judge convicted Snider of driving under the 
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influence of alcohol in violation of Code § 18.2-266. 

Admissibility of Blood Test Results

 In pertinent part, the implied consent statute provides as 

follows: 

 For purposes of this article, only a 

physician, registered professional nurse, 

graduate laboratory technician or a 

technician or nurse designated by order of a 

circuit court acting upon the recommendation 

of a licensed physician, using soap and 

water, polyvinylpyrrolidone iodine or 

benzalkonium chloride to cleanse the part of 

the body from which the blood is taken and 

using instruments sterilized by the accepted 

steam sterilizer or some other sterilizer 

which will not affect the accuracy of the 

test, or using chemically clean sterile 

disposable syringes, shall withdraw blood for 

the purpose of determining its alcohol or 

drug or both alcohol and drug content. 

Code § 18.2-268.5. The legislature has clearly indicated in the 

following statutory language that strict compliance with some 

parts of the implied consent law will not be required: 

 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 

procedures or any part thereof, and that as a 

result his rights were prejudiced. 

Code § 18.2-268.11 (emphasis added). See Artis v. City of 

Suffolk, 19 Va. App. 168, 171, 450 S.E.2d 165, 167 (1994) 
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(holding that "where there is substantial compliance, any 

deficiency in the required procedures is a matter of weight and 

sufficiency of the evidence to be determined by the trier of 

fact"). 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). 

 Snider argues that the Commonwealth did not meet its burden 

of proving substantial compliance with Code § 18.2-268.5 because 

the evidence did not establish what, if any, solution was used to 

cleanse Snider's arm before the blood was withdrawn. Snider 

relies on Hudson v. Commonwealth, 21 Va. App. 184, 462 S.E.2d 913 

(1995), where this Court held that using benadine to cleanse the 

driver's arm before a blood test did not constitute substantial 

compliance with Code § 18.2-268.5 because no evidence of 

benadine's chemical properties was presented at trial. Id. at 

186, 462 S.E.2d at 914. Snider argues that the circumstances 

here are more egregious than in Hudson because either an unknown 

solution or no solution was used on his arm. 

 In another context, the Supreme Court of Virginia has ruled 

that, in determining the question of substantial compliance, "a 

minor, trivial difference can be tolerated whereas a material 

difference cannot." Akers v. James T. Barnes of Washington, 

D.C., Inc., 227 Va. 367, 370, 315 S.E.2d 199, 201 (1984). "The 

principle of substantial compliance, which is predicated upon a 
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failure of strict compliance with applicable requirements, 

operates to replace the protective safeguards of specificity with 

a less exacting standard of elasticity, in order to achieve a 

beneficial and pragmatic result." Coleman v. Pross, 219 Va. 143, 

158, 246 S.E.2d 613, 622 (1978). We believe these general 

standards can be applied to the requirement of the implied 

consent law, where the mischief to be avoided is contamination of 

the blood that is being extracted for the blood alcohol test. In 

Hudson, the evidence proved that the area from which the blood 

sample was extracted was, in fact, contaminated by benadine, a 

solution whose chemical properties were not proved. The evidence 

in this record proved that, although Trooper Olinger watched the 

nurse extract blood from Snider's arm, Trooper Olinger could not 

recall whether the nurse used a solution to prepare Snider's arm. 

 Thus, unlike Hudson, the evidence in this case leaves uncertain 

whether any solution was used to cleanse Snider's arm before the 

blood test. 

 The evidence proved that a properly designated nurse took 

the sample. See Code § 18.2-268.5; Brooks v. City of Newport 

News, 224 Va. 311, 315, 295 S.E.2d 801, 803 (1982) (holding that 

the qualifications of the person who performs the test "is a 

matter of substance, not procedure"). Because the evidence did 

not establish whether a solution was used to prepare Snider's arm 

for the blood extraction, we can only speculate that 

contamination could have occurred. No evidence in the record 
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proved that the nurse's failure to cleanse Snider's arm caused a 

contamination which affected the accuracy of the test. See

Shumate v. Commonwealth, 207 Va. 877, 881-83, 153 S.E.2d 243, 247 

(1967) (holding that substantial compliance existed even where 

"it was not shown who took the blood [and] whether soap and water 

were used to cleanse the place at which the blood was taken"). 

 In other circumstances, we have ruled that "[w]here there is 

mere speculation that contamination . . . could have occurred, it 

is not an abuse of discretion to admit the evidence and let what 

doubt there may be go to the weight to be given the evidence." 

Reedy v. Commonwealth, 9 Va. App. 386, 391, 388 S.E.2d 650, 652 

(1990). In view of the statutory mandate that substantial 

compliance suffices to establish the procedural steps of taking 

the blood, we conclude that the failure to prove whether a 

solution was used to prepare a suspect's arm goes to the weight 

of the evidence, not its admissibility. See Code § 18.2-268.11; 

Stroupe v. Commonwealth, 215 Va. 243, 245, 207 S.E.2d 894, 896 

(1974); Artis, 19 Va. App. at 171, 450 S.E.2d at 167. 

Accordingly, we cannot say the trial judge abused his discretion 

in admitting into evidence the certificate of blood analysis. 

Furthermore, Snider retained "the right to introduce evidence on 

his own behalf to show noncompliance with the aforesaid 

procedures . . . and that as a result his rights were 

prejudiced." Code § 18.2-268.11. See also Stroupe, 215 Va. at 

245, 207 S.E.2d at 896 (observing that the statute allows the 
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defendant to prove by the nurse the particulars of extracting his 

blood). 

Sufficiency of the Evidence

 Snider next argues that even if his blood alcohol content 

exceeded the legal limit to operate a motor vehicle, the 

Commonwealth failed to prove that he consumed alcohol prior to 

the accident or that he did not consume alcohol after the 

accident. 

 "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. Commonwealth, 

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). So viewed, the 

evidence proved that Trooper Olinger noticed that Snider's speech 

was slurred, his eyes were bloodshot and glassy, and he had an 

odor of alcohol about his person. Because of those observations, 

Trooper Olinger asked Snider if he had consumed alcohol after the 

accident. Snider told her that he did not have anything to drink 

after the accident. He told her that he consumed four beers 

before the accident, the last being about thirty minutes prior to 

the accident. Snider disputed only in part Trooper Olinger's 

testimony concerning his statement. He testified that he did not 

remember Trooper Olinger asking him whether he drank "before or 

after" the accident; he testified that he told her he had been 

drinking. 

 The trial judge accepted Trooper Olinger's testimony and did 
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not believe Snider's testimony that he consumed the alcohol after 

the accident. "The weight which should be given to evidence and 

whether the testimony of a witness is credible are questions 

which the fact finder must decide." See Bridgeman v. 

Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986). 

Trooper Olinger's testimony was competent, was not inherently 

incredible, and, combined with the results of the blood alcohol 

test, was sufficient to prove beyond a reasonable doubt that 

Snider was guilty of driving while under the influence of 

alcohol. 

 For these reasons, we affirm the conviction. 

 Affirmed.