A. Upon receipt of a blood sample forwarded to the Department for analysis pursuant to § 18.2-268.6, the Department shall have it examined for its alcohol or drug or both alcohol and drug content and the Director shall execute a certificate of analysis indicating the name of the accused; the date, time and by whom the blood sample was received and examined; a statement that the seal on the vial had not been broken or otherwise tampered with; a statement that the container and vial were provided or approved by the Department and that the vial was one to which the completed withdrawal certificate was attached; and a statement of the sample's alcohol or drug or both alcohol and drug content. The Director shall remove the withdrawal certificate from the vial and either (i) attach it to the certificate of analysis and state in the certificate of analysis that it was so removed and attached or (ii) electronically scan it into the Department's Laboratory Information Management System and place the original withdrawal certificate in its case-specific file. The certificate of analysis and the withdrawal certificate shall be returned or electronically transmitted to the clerk of the court in which the charge will be heard.
B. After completion of the analysis, the Department shall preserve the remainder of the blood until at least 90 days have lapsed. The accused may, at any time prior to the expiration of such 90-day period, by motion filed before the court in which the charge will be heard, with notice to the Department, request an order directing the Department to transmit the remainder of the blood sample to an independent laboratory retained by the accused for analysis. On motion of the accused, the report of analysis prepared for the remaining blood sample shall be admissible in evidence, provided that the report is duly attested by a person performing such analysis and the independent laboratory that performed the analysis is accredited or certified to conduct forensic blood alcohol/drug testing by one or more of the following: College of American Pathologists (CAP); U.S. Department of Health and Human Services Substance Abuse and Mental Health Services Administration (SAMHSA); American Board of Forensic Toxicology (ABFT); or an accrediting body that requires conformance to forensic-specific requirements and that is a signatory to the International Laboratory Accreditation Cooperation (ILAC) Mutual Recognition Arrangement with a scope of accreditation that covers the testing being performed. If no notice of a motion to transmit the remainder of the blood sample is received prior to the expiration of the 90-day period, the Department shall destroy the remainder of the blood sample unless the Commonwealth has filed a written request with the Department to return the remainder of the blood sample to the investigating law-enforcement agency. In such case, the Department shall return the remainder of the blood sample, if not sent to an independent laboratory, to the investigating law-enforcement agency.
C. When a blood sample taken in accordance with the provisions of §§ 18.2-268.2 through 18.2-268.6 is forwarded for analysis to the Department, a report of the test results shall be filed in that office. Upon proper identification of the certificate of withdrawal, the certificate of analysis, with the withdrawal certificate attached, shall, when attested by the Director, be admissible in any court as evidence of the facts therein stated and of the results of such analysis (i) in any criminal proceeding, provided the requirements of subsection A of § 19.2-187.1 have been satisfied and the accused has not objected to the admission of the certificate pursuant to subsection B of § 19.2-187.1, or (ii) in any civil proceeding.
Upon request of the person whose blood was analyzed, the test results shall be made available to him.
The Director may delegate or assign these duties to an employee of the Department.
1992, c. 830; 1993, c. 688; 1994, cc.
337,
359,
363; 2003, cc.
933,
936; 2005, cc.
868,
881; 2009, Sp. Sess. I, cc.
1,
4; 2014, c.
328; 2017, c.
623; 2019, c.
474.
Notes of Decisions
Cited in
19
cases (
4 in the last 5 years), 1992–2024 · leading case:
In Re: Brown, 810 S.E.2d 444 (Va. 2018).
In Re: Brown, 810 S.E.2d 444 (Va. 2018).
· cites it 2× “The General Assembly expressly limited the application of clause (viii) in Code § 19.”
Stevens v. Commonwealth, 603 S.E.2d 642 (Va. Ct. App. 2004).
· cites it 4× “12 authorizes counties, cities and towns to adopt ordinances that parallel the implied consent law and its related provisions.”
Thurston v. City of Lynchburg, 424 S.E.2d 701 (Va. Ct. App. 1992).
· cites it 2× “Thereafter, one container shall be sent by the arresting officer to the Division of Forensic Science for testing, and the other upon the request of the accused shall be sent by that officer to a laboratory of the accused’s choice for independent testing.”
Ricky Mason Durrette v. Cnty. of Spotsylvania, 468 S.E.2d 128 (Va. Ct. App. 1996).
· cites it 8× “PROPER DELEGATION AND ATTESTATION Code § 18.2-268.7 states: Upon receipt of a blood sample forwarded to the Division for analysis pursuant to § 18.”
John Edward Williams v. Commonwealth (Va. Ct. App. 2003).
· cites it 12× “Pursuant to Code § 18.2-268.7, the certificate of analysis produced by the Division should include the name of the accused; the date, time and by whom the blood sample was received and examined; a statement that the seal on the vial had not been broken or otherwise tampered…”
Robel Abebe Getachew v. Commonwealth of Virginia (Va. Ct. App. 2024).
· cites it 4× “Finally, consistent with Code § 18.2-268.7, - 14 - Schneider analyzed the contents of one of the vials, produced a certificate of analysis documenting his conclusions, and removed the blood withdrawal certificate from the vial containing the blood sample he tested and attached…”
Kathryn Lydia Hunter v. Commonwealth of Virginia (Va. Ct. App. 2024).
· cites it 4× “Here, the certificate of analysis complies with Code § 18.2-268.7. The “certificate of blood withdrawal for alcohol/drug determination” attached to the certificate of analysis bears Hunter’s name, shows the date and time of the blood draw, lists Campbell as the phlebotomist, and…”
Commonwealth v. Barnes, 30 Va. Cir. 179 (Greene Cir. Ct. 1993).
· cites it 9× “Pursuant to Va. Code § 18.2-268.7, Mr. Barnes has requested that the Commonwealth provide him with the test results from the independent laboratory.”
Commonwealth v. Slusher, 30 Va. Cir. 231 (Spotsylvania Cir. Ct. 1993).
· cites it 2× “On appeal from the general district court, each of the defendants filed a motion to suppress the certificate of blood analysis on the ground that the certificate does not comply with the provisions of § 18.2-268.7. The three motions were consolidated for argument on February 18,…”
Joan C. Raymond v. Commonwealth (Va. Ct. App. 1995).
· cites it 7× “2-187 (for admission of "material" generally) were not met because the person who performed the analysis did not provide an attestation.”
Commonwealth v. Thomas, 36 Va. Cir. 136 (Loudoun Cir. Ct. 1995).
· cites it 7× “2-266 at the hearing on March 10,1995, on the defendant’s Motion to Suppress, I ruled that the Certificate of Analysis from the Division of Forensic Science would not be admissible at trial because on its face it does not comply with the requirements of § 18.2-268.7. I took…”
Stanley Kelsey Hayden v. Commonwealth (Va. Ct. App. 2006).
· cites it 4× “Code § 18.2-268.7 now serves a similar purpose: After completion of the analysis, the Department shall preserve the remainder of the blood until 90 days have lapsed from the date the blood was drawn.”
— Va. Code Ann. § 18.2-268.7(A) — 1 case
— Va. Code Ann. § 18.2-268.7(B) — 1 case
In Re: Brown, 810 S.E.2d 444 (Va. 2018).
“The General Assembly expressly limited the application of clause (viii) in Code § 19.”
— Va. Code Ann. § 18.2-268.7(C) — 2 cases
Robel Abebe Getachew v. Commonwealth of Virginia (Va. Ct. App. 2024).
“Finally, consistent with Code § 18.2-268.7, - 14 - Schneider analyzed the contents of one of the vials, produced a certificate of analysis documenting his conclusions, and removed the blood withdrawal certificate from the vial containing the blood sample he tested and attached…”
Kathryn Lydia Hunter v. Commonwealth of Virginia (Va. Ct. App. 2024).
“Here, the certificate of analysis complies with Code § 18.2-268.7. The “certificate of blood withdrawal for alcohol/drug determination” attached to the certificate of analysis bears Hunter’s name, shows the date and time of the blood draw, lists Campbell as the phlebotomist, and…”
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