Kenneth Edwards Hicks v. Commonwealth of Virginia
1093163
| Va. Ct. App. | Aug 29, 2017Background
- On March 12, 2015 appellant Kenneth Hicks collided with a parked car on I-81; safety patrol and Trooper Hagy observed him staggering, with glassy eyes and slurred speech.
- Hagy administered five field sobriety tests which Hicks failed, read Miranda warnings, arrested Hicks, and Hicks admitted taking Valium, Percocet, and Neurontin.
- Hicks consented to a blood draw under Virginia’s implied consent law; no search warrant was obtained.
- DFS testing produced a certificate of analysis showing Diazepam (and metabolites) and Oxycodone in Hicks’s blood; Dr. James Kuhlman reviewed testing, signed the certificate, and testified about drug effects but conceded he could not say precisely how the drugs affected Hicks individually.
- Hicks moved to suppress the certificate of analysis (raising Confrontation Clause/ Bullcoming-type concerns and an oblique Fourth Amendment implied-consent objection), and later moved to strike the evidence and to set aside the verdict. The trial court admitted the certificate and denied motions; the jury convicted Hicks of DUID (second offense in ten years).
- On appeal, the Court of Appeals affirmed, holding Hicks failed to preserve the Fourth Amendment/search-warrant argument and that any Confrontation Clause error in admitting the certificate would have been harmless beyond a reasonable doubt.
Issues
| Issue | Plaintiff's Argument (Hicks) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Admissibility of DFS certificate of analysis under Confrontation Clause | Certificate inadmissible because the testifying analyst (Kuhlman) did not personally perform/observe all lab work and Hicks could not cross-examine the handling analysts (Bullcoming problem) | Kuhlman reviewed all data, was designated to sign certificates, and statute makes certificate prima facie evidence; any shortcomings go to weight, not admissibility | Court assumed possible error but ruled any Confrontation Clause error was harmless beyond a reasonable doubt |
| Validity of blood draw without search warrant (Fourth Amendment / implied consent) | Consent invalid because Virginia’s implied-consent penalty vitiates voluntariness; under Birchfield a warrant is required for blood draws in many circumstances | Objection not preserved at trial; trial court never had the opportunity to rule on this specific constitutional argument | Not preserved under Rule 5A:18; appellate court declined to consider it |
| Sufficiency of evidence to convict for DUID | Commonwealth failed to prove impairment beyond reasonable doubt (no proof of tolerance, causation, or that drug levels impaired driving) | Testimony of officers (observations, failed SFSTs, admission of drug use) plus expert testimony on drug effects provided sufficient proof; remaining questions go to credibility/weight | Evidence sufficient; trial court did not err in denying motions to strike and to set aside the verdict |
| Harmlessness of any evidentiary error | Admission of certificate affected weight because it provided quantitative levels and expert commentary | Even without certificate, lay and officer observations and defendant’s admissions proved impairment; expert did not tie levels to specific impairment in Hicks | Any error in admitting the certificate was harmless beyond a reasonable doubt |
Key Cases Cited
- Bullcoming v. New Mexico, 564 U.S. 647 (2011) (Confrontation Clause requires opportunity to cross-examine the analyst who actually performed the test)
- Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) (distinguishes breath and blood tests; addresses warrants and implied-consent penalties)
- Chapman v. California, 386 U.S. 18 (1967) (harmless-error standard for constitutional errors: harmless only if beyond a reasonable doubt)
- Clemmer v. Commonwealth, 208 Va. 661 (1968) (conviction requires evidence linking accused’s erratic behavior to intoxication by self-administered substance)
- Jones v. Commonwealth, 293 Va. 29 (2017) (failure to preserve Fourth Amendment search-and-seizure argument can result in waiver under state procedural rules)