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Wendel v. Commonwealth7/16/1991
ded); see also Shumate, 207 Va. at 883, 153 S.E.2d at 247; United States v. Fletcher, 344 F. Supp. 332, 337, (E.D. Va. 1972) (discussing former equivalent Code § 18.1-55.1(i)). Indeed, in Brooks v. City of Newport News, 224 Va. 311, 295 S.E.2d 801 (1982), our Supreme Court stated: "The statutory mandate is that the guilt or innocence of the accused be determined from all the evidence of his condition at the time of the alleged offense, with or without a breath analysis....The result of a breath analysis is but auxiliary proof...." Id. at 315-16, 295 S.E.2d at 804 (emphasis added).
However, here we have more than failure to preserve the sample and more than a lack of test results. Here, we have a case where a sample was taken and, if the statutory requirements had been followed, test results would have been obtained. Without explanation, no results were made available to the accused at trial. In order to give full force and effect to Paragraphs (M), (O) and (Z) of Code § 18.2-268, we do not hold that charges must be dismissed every time the Commonwealth fails to make the results available under Code § 18.2-268(M). Since the test results are "but auxiliary proof" and are not a necessary prerequisite to a conviction, a prosecution should not fail merely because the accused makes a formal request for the results and they are either unavailable or inadmissible. When, however, a sample has been taken for testing, the Commonwealth is required to adhere to those statutory procedures designed to yield test results. In the absence of proof explaining that no results were obtained, trial courts must presume that test results were obtained and can be made available. We hold, therefore, that when the accused requests the Commonwealth's results, and the Commonwealth does not possess and/or cannot produce the results, the Commonwealth must explain the absence of test results.
The only evidence presented at Wendel's trial was the testimony of his arresting officer, who described Wendel's demeanor, the circumstances leading to his arrest, and his transportation to a local hospital where blood was drawn. The Commonwealth confirmed that it did not comply with Wendel's request for the test results. When given the opportunity to account for the lack of test results, the Commonwealth simply stipulated, without producing any evidence, that it could not provide the results of Wendel's blood test because, for some unknown reason, they were never received. The Commonwealth further stipulated that the location of the blood sample could not be accounted for. It produced no evidence that it substantially complied with the procedures for the handling of the blood sample. The basis for the trial court's ruling that the Commonwealth had substantially complied with Code § 18.2-268(Z) is, therefore, unclear.
In light of the Commonwealth's stipulation that it is unable to comply with Wendel's request for the results of the blood test or to offer proof of substantial compliance with the handling requirements, the Commonwealth is foreclosed from offering proof to the
contrary on that factual issue on remand. See Lee v. Commonwealth, 219 Va. 1108, 254 S.E.2d 126 (1979). Accordingly, a remand of the case to provide the Commonwealth with an opportunity to explain its failure to comply with Code § 18.2-268(M) and the applicability of Code § 18.2-268(Z) has been foreclosed by facts stipulated in the prior proceeding. Therefore, because the Commonwealth fai
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