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Christopher Driver v. Commonwealth8/16/1988
gh some localities may not have the physical resources
to administer both tests, the record does not reflect, and it is not asserted, that this locality lacked those resources. Therefore, we need not address whether financial exigencies constitute a valid reason for the lack of availability of both tests. We merely hold that when one of the tests is unavailable, the record must explain why it is unavailable. No such explanation exists in this record.
In this case the defendant agreed to take a blood test. Since no reason is given in the record for why the two people certified to take blood were not available, there is insufficient evidence to establish that the blood test was not available to the defendant and thus, that his refusal to take the breath test was unreasonable. The burden of proof is always upon the Commonwealth, and this burden never shifts, though the burden of going forward with the evidence may shift from time to time during the trial as exigencies may require. Hodge v. Commonwealth, 217 Va. 338, 342, 228 S.E.2d 692, 695 (1976). If the Commonwealth or locality deprives a defendant of the choice of tests provided by the statute, it has the burden of explaining why.
For the above reasons, we conclude that the judgment of the trial court must be reversed and the warrant dismissed.
Reversed and dismissed.
Disposition
Reversed and dismissed.
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