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Virginia Beach DUI Attorney – Norfolk DUI Lawyer : § 18.2-268.5. Qualifications and liability of persons authorized to take blood sample; procedure for taking samples.

For purposes of this article, only a physician, registered nurse, licensed practical nurse, phlebotomist, 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, pvp iodine, povidone 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. It is a Class 3 misdemeanor to reuse single-use-only needles or syringes. No civil liability shall attach to any person authorized to withdraw blood as a result of the act of withdrawing blood as provided in this section from any person submitting thereto, provided the blood was withdrawn according to recognized medical procedures. However, the person shall not be relieved from liability for negligence in the withdrawing of any blood sample.

No person arrested for a violation of § 18.2-266, 18.2-266.1, or subsection B of § 18.2-272, or a similar ordinance shall be required to execute in favor of any person or corporation a waiver or release of liability in connection with the withdrawal of blood and as a condition precedent to the withdrawal of blood as provided for in this section.

FAILURE TO COMPLY WITH BLOOD-TAKING PROCEDURE GOES TO WEIGHT OF EVIDENCE. –The question of how blood is taken is procedural, and a failure to comply with the directed procedures goes to the weight of the evidence and is to be considered with all the evidence in the case, with the right to the defendant to show noncompliance and resulting prejudice. Shumate v. Commonwealth, 207 Va. 877, 153 S.E.2d 257 (1967) (decided under former § 18.2-268).

Where the statute requires that when the Commonwealth draws blood for the purposes of an alcohol or drug test, the part of the body from which the blood is taken must be cleaned with “soap and water, polyvinylpyrrolidone iodine or benzalkonium chloride,” but the record stated that “benadine” was used to clean appellant’s arm, and nothing in the record supported the argument that using “benadine” substantially complied with the statute, then a finding of substantial compliance could not be supported. Hudon v. Commonwealth, 21 Va. App. 184, 462 S.E.2d 913 (1995).

Given substantial compliance by Commonwealth with procedures for blood extraction, absence of evidence establishing whether a solution was used to prepare defendant’s arm goes to the weight of the evidence, not to its admissibility; therefore, trial judge did not abuse his discretion by admitting in evidence certificate of blood analysis showing defendant to have been intoxicated, there being no evidence in the record to prove that nurse’s failure to cleanse defendant’s arm caused a contamination which affected the accuracy of the test. Snider v. Commonwealth, 26 Va. App. 729, 496 S.E.2d 665 (1998).

REASONABLE PROOF THAT THE INSTRUMENT WAS PROPERLY STERILIZED IS ESSENTIAL in establishing the reliability of the test itself. Brush v. Commonwealth, 205 Va. 312, 136 S.E.2d 864 (1964) (decided under former § 18.2-268).

In the absence of proof showing that the instrument used to withdraw defendant’s blood was sterilized pursuant to the requirements of this section, the Commonwealth has not met the burden imposed upon it, and the certificates setting forth the alcoholic content of defendant’s blood are not admissible. Brush v. Commonwealth, 205 Va. 312, 136 S.E.2d 864 (1964) (decided under former § 18.2-268).