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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2000 Term
STATE OF WEST VIRGINIA,
Plaintiff below, Appellee,
Defendant below, Appellant.
Appeal from the Circuit Court of Ohio County
Hon. Arthur M. Recht, Judge
Case No. 99-F-47
Submitted: November 1, 2000
Filed: December 1, 2000
Darrell V. McGraw, Jr., Esq.
Heather A. Wood, Esq.
Public Defender Corporation
Barbara H. Allen, Esq.
Wheeling, West Virginia
Managing Deputy Attorney General
Attorney for Appellant
Charleston, West Virginia
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. Medical records containing the results of blood alcohol tests ordered
by medical personnel for diagnostic purposes are subject to subpoena and shall not be
deemed inadmissible by virtue of the provisions of West Virginia Code § 57-5-4d
(Supp.1994). Syllabus Point 2, State ex rel. Allen v. Bedell, 193 W.Va. 32, 454 S.E.2d 77
2. An unpreserved error is deemed plain and affects substantial rights
only if the reviewing court finds the lower court skewed the fundamental fairness or basic
integrity of the proceedings in some major respect. In clear terms, the plain error rule should
be exercised only to avoid a miscarriage of justice. The discretionary authority of this Court
invoked by lesser errors should be exercised sparingly and should be reserved for the
correction of those few errors that seriously affect the fairness, integrity, or public reputation
of the judicial proceedings. Syllabus Point 7, State v. LaRock, 196 W.Va. 294, 470 S.E.2d
The instant case is an appeal by Chad Coleman of his conviction for third-
offense driving while intoxicated, a violation of W.Va.Code, 17C-5-2(k) .
The charge against the appellant arose from events that unfortunately are far
from unique. The appellant drove his car down an off ramp, crossed the center line, and ran
into a car being driven by a woman who was seriously injured in the crash.
There were no skid marks showing any braking or evasive acts by the
appellant. The appellant was found by emergency personnel to be incoherent and smelling
strongly of alcohol. Taken to the hospital, the appellant was combative and diagnosed as
having alcohol intoxication. Hospital authorities performed tests on the appellant's blood
that showed an elevated blood alcohol level, and the results of these tests were admitted into
evidence at the appellant's trial.
Police records showed that the appellant had been convicted of DUI four times
previously. (The trial judge in sentencing the appellant strongly criticized authorities in the
State of Ohio where these prior convictions occurred, for their slap-on-the-wrist approach
to multiple-DUI offenders.)
The appellant asserts that there were a number of errors in his trial. We address
two of the asserted errors, finding the others to be without merit.
First, Mr. Coleman argues that the jury was erroneously instructed that
evidence that there was ten hundredths of 1% or more, by weight, of alcohol in Mr.
Coleman's blood would be prima facie evidence that Mr. Coleman was under the influence
of alcohol, or intoxicated.
Such an instruction is directly based on the provisions of W.Va. Code, 17C-5-8
,See footnote 1
which gives prima facie under the influence or intoxication weight to such
blood test results -- if the blood test in question is performed in accordance with methods
and standards approved by the state division of health. Id.
Mr. Coleman bases his argument of instructional error on the fact that there
was no evidence that the blood test results that were testified to at his trial did in fact meet
the state-approved methods and standards, as specified in W.Va. Code, 17C-5-8 . The
State concedes that there was no such evidence presented at Mr. Coleman's trial.
Second, Mr. Coleman argues that his recidivist third-offense DUI conviction
should be reversed pursuant to the holding of State v. Nichols, ___ W.Va. ___, ___ S.E.2d
___, 1999WL 1101343 (December 3, 1999). In Nichols, we held that telling a jury about a
person's previous DUI offenses could be unfairly prejudicial at the trial of a recidivist DUI
case, and we authorized alternative procedures, such as bifurcation and stipulation, to avoid
We can quickly dispose of the appellant's second issue. The appellant's case
was tried on November 9, 1999, on a day when the decision in State v. Nichols was pending
in the breast of this Court. The opinion in Nichols was filed on December 3, 1999 -- 24 days
after the appellant's trial date. The appellant did not make any claim for bifurcation or
stipulation at his trial, nor did he take any other action to preserve any alleged error in this
regard. Under these facts, we find no grounds under Nichols to reverse the appellant's
The appellant's first issue, regarding the prima facie intoxication instruction,
is more substantial.
The State agrees that a literal reading of W.Va. Code, 17C-5-8  does not
allow the results of blood tests (including those that are performed by non-law enforcement
personnel) to have prima facie weight unless the tests are conducted in the statutorily-
The State argues nevertheless that this Court should not read the requirements
of W.Va. Code, 17C-5-8  literally-- because, contends the State, a literal reading of the
statute would be irrational.
For constitutional and similar weighty reasons, this Court must on occasion not
uphold the clearly expressed statutory intent of the Legislature. But this is not such a case.
The requirements of W.Va. Code, 17C-5-8 , read literally, may or may not be unwise --
but they are not so absurd, inherently contradictory, or irrational as to require this Court to
ignore or deviate from the clear language of the statute. It is certainly rational to require
that certain procedures must be required before a chemical test may be afforded prima facie
We must therefore agree with the appellant's contention that the judge's
instruction to the jury on the prima facie weight of the blood test results evidence did not
properly belong in the trial court's charge -- because the blood test results in question did not
meet the statutory criteria for being given such weight.
The question that follows from this conclusion is: does the court's inclusion
of this instructional language in the jury charge require reversal of the appellant's
conviction? In this regard, we must ask whether this error, as asserted on appeal, was fully
and properly preserved for appellate review.
Counsel for Mr. Coleman does not direct us to any place in the record where
an objection was made to the trial judge about inclusion of the prima facie instructional
language in the jury charge, prior to the charge being given -- although such an objection was
made post-verdict, in a motion for a new trial.
During the trial, when the appellant's counsel objected to the prosecution's
introduction of hospital blood test results as evidence, the trial judge (as part of a colloquy
with counsel) asked the prosecutor if the prosecutor was going to offer the prima facie
instruction as part of the jury charge. The prosecutor replied that he was, and that he
expected that such a proffered instruction would draw an objection. Defense counsel did not
speak to the prima facie instruction question, and the judge did not say that he was or was
not going to give such an instruction.
The trial judge then admitted the hospital blood test results, but he specifically
stated that the results were being admitted under State ex rel. Allen v. Bedell, 193 W.Va. 32,
454 S.E.2d 77 (1995).
In Bedell, this Court allowed the results of blood tests that were not
administered by or at the direction of law enforcement to be introduced into evidence,
Medical records containing the results of blood alcohol tests
ordered by medical personnel for diagnostic purposes are
subject to subpoena and shall not be deemed inadmissible by
virtue of the provisions of West Virginia Code § 57-5-4d
Syllabus Point 2, State ex rel. Allen v. Bedell, 193 W.Va. 32, 454 S.E.2d 77 (1995). We did
not address in Bedell the issue of whether such test results could be given prima facie weight
if there was no evidence that the tests were performed according to state-approved standards.
In the instant case, the trial judge correctly admitted the hospital blood test
results evidence, not as necessarily having prima facie weight, but simply as blood alcohol
level evidence, under Bedell.
At this juncture in Mr. Coleman's trial, then, we do not perceive that any
objection was made by defense counsel to the propriety of including the prima facie
instructional language in the jury charge.
Later in the trial, just before the judge charged the jury, the prosecutor said to
the judge: We accept the changes [in the charge] . . . with the presumptions . . .. It may
be that by the word presumptions, the prosecutor was referring to the prima facie
instructional language. Defense counsel then indicated that he had no objection to the
charge. Again, we do not perceive that there was an objection at this juncture in the trial to
the court's inclusion of the prima facie language in the charge.
Upon our review of the trial record, then, we cannot conclude that there was
a specific and timely objection presented to the trial judge by the appellant to the inclusion
of the prima facie instructional language in the jury charge, prior to the giving of the charge.
The asserted instructional error of which the appellant complains was not called to the
attention of the judge until after the defendant was convicted -- and there is no suggestion
that the judge was unable or unwilling to entertain objections to the instructions and charge,
prior to its being delivered to the jury.
Under these circumstances, we must regard this asserted error that the appellant
complains of -- the inclusion of the prima facie language in the jury charge -- as unpreserved.
We review the asserted error, therefore, under the plain error doctrine.
Syllabus Point 7 of State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996) states:
An unpreserved error is deemed plain and affects substantial
rights only if the reviewing court finds the lower court skewed
the fundamental fairness or basic integrity of the proceedings in
some major respect. In clear terms, the plain error rule should
be exercised only to avoid a miscarriage of justice. The
discretionary authority of this Court invoked by lesser errors
should be exercised sparingly and should be reserved for the
correction of those few errors that seriously affect the fairness,
integrity, or public reputation of the judicial proceedings.
Applying the foregoing principles, in view of the strong evidence (in addition
to the blood test results) of the appellant's intoxication, and upon on our review of the entire
record of the trial -- which was conducted in a calm and even-handed fashion, despite the
inflammatory subject matter -- we do not believe that the giving of the prima facie
intoxication instructional language in this case seriously affect[ed] the fairness, integrity,
or public reputation of the judicial proceedings in question. Id. We certainly cannot say
that Mr. Coleman's third-offense DUI conviction (actually his fifth DUI conviction) was a
miscarriage of justice.
We therefore decline to exercise our discretionary authority to find plain error
in the court's inclusion of the prima facie intoxication language in the jury charge.
For the foregoing reasons, the judgment below is affirmed.
1§ 17C-5-8. Interpretation and use of chemical test.
Upon trial for the offense of driving a motor vehicle in this
state while under the influence of alcohol, controlled substances
or drugs, or upon the trial of any civil or criminal action arising
out of acts alleged to have been committed by any person
driving a motor vehicle while under the influence of alcohol,
controlled substances or drugs, evidence of the amount of
alcohol in the person's blood at the time of the arrest or of the
acts alleged, as shown by a chemical analysis of his or her
blood, breath or urine, is admissible, if the sample or specimen
was taken within two hours from and after the time of arrest or
of the acts alleged, and shall give rise to the following
presumptions or have the following effect:
(a) Evidence that there was, at that time, five hundredths of one
percent or less, by weight, of alcohol in his or her blood, shall be
prima facie evidence that the person was not under the influence
(b) Evidence that there was, at that time, more than five
hundredths of one percent and less than ten hundredths of one
percent, by weight, of alcohol in the person's blood shall be
relevant evidence, but it is not to be given prima facie effect in
indicating whether the person was under the influence of
(c) Evidence that there was, at that time, ten hundredths of one
percent or more, by weight, of alcohol in his or her blood, shall
be admitted as prima facie evidence that the person was under
the influence of alcohol.
A determination of the percent, by weight, of alcohol in the
blood shall be based upon a formula of (1) the number of grams
of alcohol per one hundred cubic centimeters of blood, (2) the
number of grams of alcohol per two hundred ten liters of breath,
or (3) the number of grams of alcohol per sixty-seven milliliters
A chemical analysis of a person's blood, breath or urine, in
order to give rise to the presumptions or to have the effect
provided for in subdivisions (a), (b) and (c) of this section, must
be performed in accordance with methods and standards
approved by the state division of health. A chemical analysis of
blood or urine to determine the alcoholic content of blood shall
be conducted by a qualified laboratory or by the state police
scientific laboratory of the criminal identification bureau of the
division of public safety.
The provisions of this article shall not limit the introduction in
any administrative or judicial proceeding of any other competent
evidence bearing on the question of whether the person was
under the influence of alcohol, controlled substances or drugs.