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Christopher Driver v. Commonwealth8/16/1988
This is an appeal of a conviction of unreasonably refusing to take a blood or breath test as required by Code § 18.2-268. Because the record does not reflect why a blood test was unavailable, we reverse and dismiss the defendant's conviction.
The defendant was found by a Smithfield police officer in the early morning at the location of a single vehicle accident. He charged the defendant at the scene with driving under the influence and reckless driving. The driving under the influence charge was dismissed by the general district court, and the circuit court found him not guilty of reckless driving.
Approximately one hour after his arrest, the defendant was taken to the police station where he was advised of Code § 18.2-268, Virginia's "implied consent law." He requested a blood test. The arresting officer testified that at that point he "called up front
to the dispatcher to contact the two individuals that we have in the County that are certified to take blood." The dispatcher called back "and said neither of the individuals was available." The police officer further testified that the magistrate then arrived and was told "that the blood test was unavailable; that the breath test was." The defendant testified to substantially the same sequence of events but added that he offered to pay for a blood test at a local hospital.
The magistrate informed the defendant of the implied consent law several more times but the defendant continued to refuse to take a breath test. He also refused to sign a "Declaration of Refusal" form prepared by the magistrate. The defendant was then charged with unreasonable refusal to submit to a blood or breath test. The trial court found the defendant guilty of that offense and suspended his license for ninety days.
(1-3) A person charged with driving under the influence is required to elect to submit to either a blood or breath test, but not both. Code § 18.2-268(b). If either test is unavailable, he must take the available test, and the unavailability of the other test may not be asserted as a defense. Id. Only if both are available, is the defendant entitled to choose the test to be administered. The offense of which the defendant was convicted, however, requires a finding that his refusal to submit to testing was "unreasonable." We hold that when the evidence establishes that one of the tests was unavailable, a defendant cannot be convicted of "unreasonably" refusing to submit to testing without an adequate explanation from the government as to why one of the tests was unavailable. A defendant should not be found guilty of unreasonably refusing to submit to the one option available if the government's action in failing to make the other statutorily contemplated test available is itself unreasonable; thus, when one of the tests is unavailable, the record must contain evidence disclosing the reasons for its unavailability. While, in this case, we need not decide under what circumstances the failure of the government to make both tests available would constitute a defense, we note that Code § 18.2-268 contemplates the existence of both a blood and breath test. Cf. Lowe v. Commonwealth, 230 Va. 346, 350, 337 S.E.2d 273, 275-76 (1985), cert. denied, 475 U.S. 1084 (1986). Without an explanation of why a blood test was unavailable, there is a danger that one of the tests may be withheld arbitrarily and without adequate
cause and that government officials may capriciously deprive a driver of the choice provided by Code § 18.2-268.
Page 1 2 3 Virginia DUI Attorneys
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