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Basfield v. Commonwealth10/2/1990
943, 945, 265 S.E.2d 705, 706 (1980); Allen v. Commonwealth, 3 Va. App. 657, 663, 353 S.E.2d 162, 166 (1987).
The appellant further contends that the court erred in giving Instruction No. 4. Since the case is to be remanded, we shall consider that question.
Instruction No. 4 told the jury:
You have received evidence of the amount of alcohol in the blood of the defendant at the time of the alleged offense. If there was at that time 0.10 percent or more of alcohol in the defendant's blood, there is a rebuttable presumption that the defendant was under the influence of alcohol. This presumption may be rebutted by other evidence.
The defendant objected to the instruction on the ground that the only evidence concerning the amount of alcohol in his blood was the certificate of blood analysis which related not to the time of the alleged offense, but rather to the time the test was performed. This argument flies in the face of Code § 18.2-269(A) which provides:
In any prosecution for a violation of § 18.2-36.1 or § 18.2-266 (ii), or any similar ordinance of any county, city or town, the amount of alcohol in the blood of the accused at the time of the alleged offense as indicated by a chemical analysis of a sample of the accused's blood or breath to determine the alcoholic content of his blood in accordance with the provisions of § 18.2-268 shall give rise to the following rebuttable presumptions....
Instruction No. 4 was a correct statement of the law. The language "as indicated by a chemical analysis" sets forth a presumption that the blood alcohol level determined in the test is indicative of the blood alcohol level at the time of the alleged offense. See Davis v. Commonwealth, 8 Va. App. 291, 300, 381 S.E.2d 11, 16 (1989).
The judgment of the trial court is reversed and remanded for further proceedings if the Commonwealth be so advised.
Reversed and remanded.
Disposition
Reversed and remanded.
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