The man charged in a November collision that claimed the life of a father of two young children will either plead guilty or face trial with evidence that he had more than twice the legal limit of alcohol in his blood that night.
Circuit Judge Thomas S. Shadrick denied a motion Wednesday to throw out evidence that 50-year-old Steven V. Arcese had a blood-alcohol level of 0.23 hours after the Nov. 3 accident.
The legal limit for driving in Virginia is 0.08.
Police said that Arcese, driving a 2002 Audi station wagon, ran a red light at the intersection of London Bridge Road and Dam Neck Road, and collided with a vehicle driven by David Fisher, 26, of Virginia Beach.
Fisher was killed. His children, 3-year-old James and 6-month-old Amber, were in child-restraint seats in the back of their 1991 Chevrolet Cavalier station wagon and were not injured.
Arcese is charged with aggravated involuntary manslaughter, driving under the influence and refusal to take a blood-alcohol test. He could be sentenced to up to 20 years in prison if convicted during a trial scheduled for April 23.
On Wednesday, Arcese’s lawyers, Moody E. “Sonny” Stallings and Mark T. Del Duca, argued that Arcese’s constitutional guarantee against unreasonable search and seizure was violated when police obtained Arcese’s blood test results from Sentara Virginia Beach General Hospital, where he was taken for treatment.
After the accident, Arcese refused a breath test, Stallings said. Arcese also told police twice he would not allow them to draw blood to determine his blood-alcohol level.
At that point, Stallings said, police needed a search warrant before taking Arcese’s blood.
Instead, Stallings said, police “came in the back door” to obtain Arcese’s blood test results by subpoena from the hospital.
Arcese, who is being held without bond in the Virginia Beach City Jail pending trial, testified Wednesday that he had been drinking before the accident.
“I had a beer, a little bit of wine with dinner and a glass of wine after dinner,” Arcese said.
A nurse testified that she took Arcese’s blood as part of the hospital’s routine procedure prior to treatment.
“I told him I was not drawing blood for the police,” said Heather L. Mcinyk, an emergency room nurse at the hospital.
Mcinyk testified that she told Arcese that “if the police wanted his results, they would have to subpoena his results.”
That’s what police did, testified Beach Officer Gary Kerfoot.
Kerfoot said he was trying to get the blood because “I was going to use it for prosecution.”
Although Stallings maintained that the police action was illegal, he acknowledged that state law allows authorities to obtain blood-alcohol test results from suspects during the regular course of providing emergency medical treatment.
Mike Goodove, president of the local chapter of Mothers Against Drunk Driving, said after the hearing that the law streamlines the prosecution of people who are involved in drunken-driving accidents but refuse to take breath tests. MADD supported its passage, he said.
After the hearing, Stallings said he raised the constitutional issue, in part, to preserve it for appeal after trial. He said Arcese may plead guilty to avoid a jury trial, but could appeal the conviction if he does so.