Opinion
42649 Record No. 7768.
March 6, 1972
Present, Snead, C.J., Carrico, Gordon, Harrison, Cochran and Harman, JJ.
Automobiles — Suspension of License to Drive — Refusal of Blood Test — Proof.
Refusal to submit to test to determine alcoholic content of blood may be proved by other evidence than declaration of refusal or certificate of committing justice.
Error to a judgment of the Circuit Court of Cumberland County. Hon. George Abbitt, Jr., judge presiding.
Affirmed.
William C. Carter, for plaintiff in error.
A. R. Woodroof, Assistant Attorney General (Andrew P. Miller, Attorney General, on brief), for defendant in error.
Clarence W. Boggs, the defendant, was charged on a warrant with refusing to submit to a test to determine the alcoholic content of his blood. He was convicted, and his operator's license was suspended for a period of ninety days. Code Sec. 18.1-55.1(n). On appeal, he contends that his conviction should be reversed and the charge dismissed because the certificate of the committing justice certifying his refusal was not attached to the warrant as required by Code Sec. 18.1-55.1(k).
Code Sec. 18.1-55.1(k) does provide that "the certificate of the committing justice . . . shall be attached to the warrant and shall be forwarded by the committing justice . . . to the court in which the offense of driving under the influence of intoxicants shall be tried." And it is true that the certificate was not attached to the warrant when this case was tried in the trial court. But it does not follow that the defendant is entitled to dismissal because of that defect.
The certificate of the committing justice is required where the person from whom the blood is sought fails or refuses to execute a declaration of refusal. Code Sec. 18.1-55.1(j). The defendant in this case refused to execute such a declaration.
Under Code Sec. 18.1-55.1(m), the certificate of the committing justice is made "prima facie evidence that the defendant refused to submit to the taking of a sample of his blood to determine the alcoholic content thereof." Lacking a certificate, the Commonwealth is not entitled to the benefit of this provision of the statute. It may, however, prove the refusal by other evidence. The refusal was proved by other evidence in this case, and so we reject the defendant's contention and affirm his conviction.
A declaration of refusal, when executed, has the same prima facie effect as the certificate of the committing justice.
Affirmed.