 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Wendel v. Commonwealth7/16/1991
COLEMAN, J.
Following a bench trial in the Circuit Court of the City of Richmond, Charles T. Wendel, Jr., was found guilty of driving while intoxicated in violation of Code § 18.2-266. When arrested, Wendel was informed of Virginia's implied consent law. He elected to have a sample of his blood taken for analysis. At some point before trial, Wendel requested the Commonwealth's result of his blood analysis pursuant to Code § 18.2-268(M), which provides:
Upon the request of the person whose blood or breath or both blood and breath sample was taken for chemical tests to determine the alcohol or drug or both alcohol and drug content of his blood, the results of such test or tests shall be made available to him.
At the time of trial, the Commonwealth had not provided Wendel with the results of his blood test. The Commonwealth stipulated that it never received the results from the state forensic laboratory performing the analysis and that it was unable to account for the location of the actual blood sample. The trial court proceeded to try Wendel without requiring that the results of the blood test be made available. The court based its ruling on the grounds that the Commonwealth had substantially complied with the provisions of Code § 18.2-268(M), as required by Code § 18.2-268(Z) and, therefore, since the results were "unavailable," the Commonwealth was not required to furnish the results to Wendel. We find that the Commonwealth did not establish that the results were "unavailable." We hold that Wendel was
entitled to have the results of the blood test made available to him, because, on these facts, Code § 18.2-268(Z) was not applicable and did not relieve the Commonwealth of its obligation to provide Wendel with the test results. Accordingly, we reverse his conviction and, in light of the Commonwealth's stipulation that it cannot comply with Wendel's request, dismiss the case against him.
Code § 18.2-268, Virginia's implied consent law, serves several purposes: it sets forth the requirement that one using the highways in Virginia charged with operating a motor vehicle while under the influence of drugs or intoxicants consents to provide a blood or breath sample to test for alcohol or drug content in the blood or breath; it defines the procedures, rules, and requirements concerning the Commonwealth's use of blood and breath analyses for alcohol and drug content; it defines the legal implications of a refusal to submit to a test for one arrested on a violation of Code § 18.2-266 or a similar local ordinance of a county, city, or town; and it establishes procedural safeguards for those accused of violating state law or local ordinances. One safeguard is set forth in Code § 18.2-268(B), which requires that an accused be arrested within two hours of the alleged offense in order for the test results to be admissible at trial. See Overbee v. Commonwealth, 227 Va. 238, 242, 315 S.E.2d 242, 244 (1984). Code § 18.2-268(F) explains who may take a blood sample and how it may be taken. Another safeguard is provided in Code § 18.2-268(G) through (I), which require the Commonwealth to take two blood samples and allow the accused to obtain his separate blood analysis, so that the results can be compared with the results of the Commonwealth and so that any discrepancies can be considered by the trier of fact. Code § 18.2-268(M) provides a safeguard which allows the person whose blood has been analyzed to obtain the Commonwealth's results in order to prepare an adequate defense at trial and, where d
Page 1 2 3 4 Virginia DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|