Virginia man convicted of Driving Under the Influence and Aggravated Involuntary Manslaughter.

Charles Patrick Goodman (appellant) appeals from his bench trial convictions for driving under the influence of alcohol (DUI) and aggravated involuntary manslaughter, in violation of Code §§ 18.2-266 and 18.2-36.1(B), respectively. On appeal, he contends that (1) the trial court erroneously admitted into evidence the results of blood alcohol concentration *378 testing performed on blood drawn without his actual consent while he was unconscious or incoherent and apparently unable to give actual consent; (2) his prosecutions for driving under the influence and aggravated involuntary manslaughter violated double jeopardy prohibitions; and (3) even if the convictions did not impose multiple punishments for the same offense, contrary to double jeopardy prohibitions, the evidence was insufficient to support his conviction for aggravated involuntary manslaughter because it failed to prove both causation and criminal negligence. [DUI and Involuntary Manslaughter are very serious criminal crimes in Virginia.]

First, we hold the taking and testing of appellant's blood while he was incoherent or unconscious did not constitute an unreasonable search in violation of the Fourth Amendment because the blood was obtained in a manner that substantially complied with Virginia's implied consent law. Thus, admission of the test result was not erroneous. Second, we hold appellant's convictions for both DUI and aggravated involuntary manslaughter did not violate double jeopardy principles because the convictions were obtained in a single proceeding and the legislature intended to authorize the imposition of multiple punishments in these circumstances. Finally, we hold the evidence was sufficient to establish the requisite causal connection between appellant's intoxication and the victim's death and to prove appellant's behavior constituted criminal negligence. Thus, we affirm appellant's convictions. [ Question about Double Jeopardy, ask a Virginia Court Lawyer.]

**558 I.

BACKGROUND

Shortly after 8:00 p.m. on Sunday, August 13, 2000, appellant lost control of the vehicle he was driving and crashed into a pickup truck traveling in the opposite direction. Appellant's passenger, Lisa Wright, died from injuries sustained in the accident. [ A VA Court Lawyer can assist you with a case regarding DUI and Involuntary Manslaughter.]

Appellant had been drinking for several hours prior to the accident. He estimated drinking eight to eleven beers between 4:00 and 8:00 p.m. but admitted he “didn't count” how many beers he drank and “it could have been more.” Between*379 about 6:00 and 8:00 p.m., appellant drank at Erma's bar. Around 8:00 p.m., appellant and Lisa Wright left Erma's bound for an establishment called Rob's. Appellant admitted “stumbl[ing]” as they left. They departed in appellant's car with appellant at the wheel, even though appellant knew he was legally prohibited from driving because he had been adjudicated a habitual offender and knew it was not safe for him to drive because he had been drinking. Appellant had experienced no mechanical problems with his vehicle prior to the accident. [ A Richmond VA Attorney can also assist you with cases around the state.]

The accident occurred on a four-lane, divided road with additional exit lanes or ramps bordering both the north and southbound lanes. Immediately prior to the accident, appellant's vehicle had “just come off the ... ramp” and was traveling north in the right through lane at a speed of at least thirty-five to forty miles per hour. Appellant's vehicle came in contact with the right curb and then veered left across the second northbound lane, across the grassy median, and across the left southbound lane into the right southbound lane, where it collided with a pickup truck driven by Louis Durham. Appellant's car was “coming very quickly” and was airborne, and the impact pushed Durham's pickup into the right exit lane. Appellant's car left an arc of “tire smudges” spanning a distance of 218 feet from the right curb in the northbound lanes to the right curb of the southbound access lane. [ Virginia Court Lawyers can also assist you with a case regarding Reckless Driving.]

Immediately after the accident, appellant, who was pinned in the driver's seat, still had “a beer can clutched to his chest,” and numerous beer cans littered the floor of the car and the ground outside appellant's door. Although appellant appeared to be “passed out,” witness Annette Jeter said she “could hear a loud snoring sound” coming from him. She agreed that appellant had facial lacerations and could have had facial fractures, but she testified that, based on her fourteen years of experience as a nurse, she concluded that he was not unconscious because “normally if you are unconscious you don't have a loud snoring; that reflex is basically silent and so you don't really hear a loud sound.”

*380 When Police Officer Bonnie Oaks responded to the scene, appellant looked unconscious, but he was “gurgling something” indiscernible and was “incoherent.” Oaks watched as emergency personnel removed appellant's unresponsive passenger and then cut appellant from the vehicle. Oaks had observed the beer can in appellant's hand and the cans in his car and on the ground. When Oaks leaned over appellant after he had been placed on a gurney, she “could smell the strong odor of alcohol coming from his person.” Oaks then placed appellant under arrest and stayed with appellant while he was transported to the hospital until his blood was drawn for alcohol testing pursuant to the implied consent law.

Oaks tried to instruct appellant on the implied consent law while en route to the hospital, but he was incoherent. Upon their arrival at the hospital at 9:10 p.m., a registered nurse inserted an angiocath and drew several vials of appellant's blood for treatment purposes. Officer Oaks then requested a “court certified blood tech” to draw appellant's blood for testing pursuant to the implied consent law. Technician Steve Parrish arrived at about 9:15 or 9:20 p.m. and withdrew two vials of blood through the same catheter the hospital's nurse had used. Appellant remained incoherent, but he “curs[ed]” and was “somewhat combative” while his blood was being drawn. The evidence established that no fluids or other substances were administered to appellant before his blood was drawn and that only approved solutions not containing any alcohol were used to clean the site on his arm where the catheter was inserted. [ A Richmond VA Attorney can help you file your appeal.]

**559 Parrish gave the vials of blood to Officer Oaks, who mailed one of the vials to the lab for testing and kept the other in the property vault in case appellant wished to have it tested by an independent lab. On the counter beside appellant in the hospital treatment room, next to appellant's wallet and other possessions, Oaks left an information sheet indicating that the second blood sample would be retained by police for seventy-two hours and that appellant had the right to have the sample tested by an independent lab. Detective Matthew Carter then went to appellant's home, where he told appellant's wife about *381 appellant's right to have an independent lab test the second blood sample, and he left her a second copy of the sheet containing that same information.

Laboratory test results admitted into evidence indicated that appellant had a blood alcohol concentration (BAC) of 0.29%. [ The adult BAC legal limit in Virginia is 0.08.]

At trial, appellant testified in his own defense, claiming for the first time that he thought passenger Lisa Wright had taken his wallet as they bumped into each other while leaving the bar and that she had removed the money and then pretended to have found the empty wallet on the seat of his car once they got in. He said that he confronted her about the missing money while they were driving to Rob's, that she “grabbed his wrist” and “arm ... and jerked [him],” and that he did not remember anything after that until he saw his wife in the emergency room.

Appellant argued at trial that the BAC test results were inadmissible. The trial court ruled the BAC results were admissible as the product of a consensual search because the officer's actions substantially complied with the implied consent law. In the alternative, it held the nonconsensual, warrantless seizure of appellant's blood was reasonable under the Fourth Amendment because the police had probable cause to arrest and reasonably feared loss of evidence and because the blood was taken in a reasonable manner.

Appellant also argued that his conviction for both DUI and aggravated involuntary manslaughter arising out of the same act of driving under the influence would violate double jeopardy prohibitions. The trial court implicitly denied the claim when it convicted appellant of both offenses.

Finally, appellant challenged the sufficiency of the evidence to prove that his intoxication caused the accident and that his behavior constituted criminal negligence. In convicting appellant of DUI and aggravated involuntary manslaughter, the trial court made the following findings:

[T]he elements of [the] offense have been proven by your conduct prior to your operation of the motor vehicle in the *382 alcohol which you consumed prior to getting behind the wheel; the fact that you didn't have a license and the actions which you took while driving immediately prior to this accident. And that ... show[s] a total wilful disregard of human life ... by your wilful, wanton conduct in driving. [ Do you have questions about something regarding a Criminal Case in Virginia, visit a Virginia Court Lawyers Blog.]

Man Convicted of Murder, Reckless Driving, Driving on a Suspended License, and several other charges in Virginia.

On April 21, 2003, the automobile that Defendant was operating overturned and struck a tree. This accident resulted in the death of two passengers in Defendant's vehicle. Defendant had a suspended driver's license and did not have proper registration or insurance for the vehicle. On June 21, 2003, Defendant was indicted on seven counts, including two charges of involuntary manslaughter in violation of § 18.2-36 of the Code of Virginia in connection with the deaths of his two passengers (“Count 1” and “Count 2”), reckless driving in violation of § 46.2-852 of the Code of Virginia (“Count 3”), driving on a suspended license in violation of § 46.2-301 of the Code of Virginia (“Count 4”), unlawfully operating a motor vehicle with improper registration in violation of 46.2-613 (“Count 5”), failing to secure a child less than sixteen years old in a seatbelt in violation of § 46.2-1095 (“Count 6”), and operating a motor vehicle on the highway knowing that fees had not been paid to the Commission in violation of § 46.2-707 of the Code of Virginia (“Count 7”). [ This Case involve many different charges that would need to handled by an Expert Virginia Court Lawyer.]

On August 5, 2003, Defendant filed a Motion to Sever Counts 4, 5, and 7 from Counts 1, 2, 3, and 6. On August 27, 2003, the Court granted the Defendant's Motion to Sever Count 5. The Court also invited counsel for both parties to submit additional memoranda on the issue of whether to sever Counts 4 and 7.

Analysis

Under the pertinent portions of Virginia Supreme Court Rule 3A: 10, the Court has discretion to direct that an accused be tried at one time for all offenses then pending against him, if justice does not require separate trials and the offenses meet the requirements of Supreme Court Rule 3A: 6(b). In the case at bar, Counts 4 and 7 do not meet the requirements of Virginia Supreme Court Rule 3A: 6(b), which provides:

Two or more offenses, any of which may be a felony or misdemeanor, may be charged in separate counts of an indictment or information if the offenses are based on the same act or transaction, or on two or more acts or transactions that are connected or constitute parts of a common scheme or plan.

Va. Sup.Ct. R. 3A: 6 (2003). The “connected” test of Rule 3A:6(b) is that the crimes should be “so intimately connected and blended with the main facts adduced in evidence that they can not be departed from with propriety.” Spence v. Commonwealth, 12 Va.App. 1040, 1044, 407 S.E.2d 916, 918 (1991)(quoting Kirkpatrick v. Commonwealth, 211 Va. 269, 273, 176 S.E.2d 802, 806 (1970)). The Spence court found that four sales of cocaine did not meet this test because the transactions occurred on different days and “no evidence linked or connected one sale with the other.” Spence, 12. Va.App. at 1044, 407 S.E.2d at 918. [Motor Vehicle Charges can range from sitations to felonies.]

*2 The connection between all of the Counts at issue here is insufficient because Counts 4 and 7 are strict liability offenses and relate only to the fact that the Defendant operated the vehicle at all. As defense counsel states, the Defendant could have been charged with Counts 4 and 7 the moment he pulled out of his driveway. Mem. in Support at 5.

In contrast, Counts 1, 2, and 3 are not based on the simple act of driving; those Counts relate to the manner in which Defendant operated a motor vehicle.Va.Code § 46.2-852 states that “any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving.”In King v. Commonwealth, the court defined involuntary manslaughter in the operation of motor vehicle as “the accidental killing which, although unintended, is the proximate result of negligence so gross, wanton, and culpable as to show a reckless disregard of human life.” 217 Va. 601, 607, 231 S.E.2d 312, 316. The court held that the accident resulting in death must be the result of the culpable conduct, and that the mental state must relate to the driving conduct of the defendant. Id. Evidence to support Counts 4 and 7 bears neither on the mental state nor driving conduct of the Defendant. In fact, no evidence, other than the fact that the Defendant drove a motor vehicle, links these separate counts in the indictment.

The counts in the indictment also do not constitute parts of a common scheme or plan. “A common scheme or plan is present only if the relationship among offenses ... is dependent upon the existence of a plan that ties the offenses together and demonstrates that the objective of each offense was to contribute to the achievement of a goal not obtainable by the commission of any of the individual offenses.” Spence, 12. Va.App. at 1044, 407 S.E.2d at 918 (ellipsis in original)(quotation omitted). This is clearly not applicable to the situation in this case. [ Richmond VA Lawyers can assist with case around the state.]

The Commonwealth argues that even if another crime is not inextricably linked with the offense on trial, evidence of another crime may be introduced for the purpose of establishing the feelings of the accused toward his victim. Shifflett v. Commonwealth, 29 Va.App. 521, 513 S.E.2d 440 (1999). However, to be admissible, the “prior crime or bad act must be shown to have a causal relation or logical and natural connection with the crime charged, or alternatively, the two acts must form parts of the same transaction.” Shifflett, 29 Va.App. at 529, 513 S.E.2d at 444 (citing Guill v. Commonwealth, 255 Va. 134, 140, 495 S.E.2d 489, 492-93 (1998)). Commonwealth argues that evidence of Counts 4 and 7 can be used to prove Defendant's disregard for the safety of the other passengers in the vehicle, in that the Defendant's “act of placing the vehicle on the highway set in motion the process that caused the other events.”Mem. in Opp. at 3. However, this connection is too tenuous; the act of driving on a suspended license and without proper insurance itself did not cause the accident and has no logical connection to the manner in which the Defendant drove.

*3 Further, evidence of prior bad acts is not admissible if the prejudice to the Defendant would outweigh its probative value. Shifflett, 29 VA App. at 529, 513 S.E.2d at 444 (citing Woodfin v. Commonwealth, 236 VA. 89, 95, 372 S.E.2d 377, 381 (1988)). Here, knowledge that the Defendant had a suspended license and had no insurance would clearly be prejudicial. The jury would naturally conclude that the Defendant was a bad driver and was a regular violator of state driving laws, and would also speculate as to the nature of his previous driving offenses. [ You should always have a VA Court Lawyer with you, even for minor traffic charges.]

Conclusion

Counts 4 and 7 do not fall within the ambit of Virginia Supreme Court Rule 3A: 6(b), nor are they admissible prior bad acts because there is no logical or causal connection between these counts and Counts 1, 2, 3, and 6 of the Indictment. Further, prejudice to the Defendant would far outweigh any probative value. Accordingly, the Defendant's Motion to Sever Counts 4 and 7 is granted.

The Court requests that Mr. Edwards or Mr. Butswinkas prepare a final order consistent with this opinion and circulate it to Mr. Close, noting counsel's objections to the Court's ruling, if any.