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Wendel v. Commonwealth7/16/1991
eemed necessary or advisable, to obtain the presence of those conducting the test in order to challenge its results.
After setting forth those procedural safeguards for taking, handling, identifying, and disposing of the sample, Code § 18.2-268(Z) provides, in effect, that "substantial compliance" with the steps "relating to the taking, handling, identification, and disposition" of blood and breath samples is all that is required. See, e.g., Shumate v. Commonwealth, 207 Va. 877, 883, 153 S.E.2d 243, 247 (1967). Code § 18.2-268(Z) further provides that failure to comply with any of the procedural steps in taking, handling, identifying and disposing of the blood or breath samples shall not of itself be grounds for finding an accused not guilty or, on that basis alone, for rejecting the test results. Significantly, however, Code § 18.2-268(Z) does not deal with or address the handling of test results, and it does not relieve the Commonwealth of its responsibility under Code § 18.2-268(M) to provide an accused with the test results when they have been requested.
Code § 18.2-268(M) is mandatory. "When the word 'shall' appears in a statute it is generally used in an imperative or mandatory sense." Schmidt v. City of Richmond, 206 Va. 211, 218, 142 S.E.2d 573, 578 (1965). The trial court's conclusion that showing substantial compliance with Code § 18.2-268(Z) is all that was required to fulfill the requirements of Code § 18.2-268(M) follows only when the unavailability of the test results is related to the taking, handling, identifying and disposing of the sample. In situations where the test results are available, or where they are unavailable for a reason other than the procedures outlined in Code § 18.2-268(Z), the trial court's interpretation and application of Code § 18.2-268(Z) would render Code § 18.2-268(M) meaningless.
However, the record does not show why the Commonwealth's attorney considered the results to be unavailable. The failure to provide the accused with the results may have occurred because
the laboratory failed to prepare a report of the results, mailed it to the wrong court, the mail service misdelivered or failed to deliver it, a clerk at the trial court misfiled the report, or any number of possibilities not associated with taking and handling the blood sample as contemplated by Code § 18.2-268(Z). All of these reasons are irrelevant to the procedures covered by Code § 18.2-268(Z). On this record, the trial court erred in concluding that Code § 18.2-268(Z) controlled Code § 18.2-268(M) where there has been no proof or proffer of evidence that the reason the results were unavailable is related to the procedures circumscribed by Code § 18.2-268(Z).
The Commonwealth correctly posits that failure to preserve the blood sample taken after the arrest of the accused does not require the dismissal of the charges against him. This is plainly stated in Code § 18.2-268(Z). The Commonwealth also points to pertinent language in Code § 18.2-268(O), which implies that the results of tests are not necessary to convict one charged with driving while intoxicated:
In any trial for a violation of § 18.2-266 or of a similar ordinance of any county, city or town, this section shall not otherwise limit the introduction of any relevant evidence bearing upon any question at issue before the court, and the court shall, regardless of the result of the blood or breath test or tests, if any, consider such other relevant evidence....
(emphasis ad
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