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Sullivan v. Commonwealth11/23/1993
OPINION BY JUDGE LARRY G. ELDER
Mary E. Sullivan appeals from her conviction for driving under the influence of alcohol, her second offense in five years. On appeal, she argues that the trial court erred in finding that the Commonwealth complied with the implied consent law and in denying her motion to suppress the results of her breath test. Contrary to the trial court's Conclusion, she asserts that the facts clearly showed that a blood test was available at another location but that she was incorrectly informed that it was unavailable and, therefore, was not given the opportunity to elect which test she preferred as required by the statute. For the reasons set forth below, we reverse appellant's conviction and dismiss the warrant.
Appellant was stopped on December 17, 1991, in Fairfax County for running a stop sign. After determining that appellant had been drinking, Officer Elam arrested her and took her to the Fairfax Adult Detention Center. While Elam was advising appellant of the implied consent law, Officer Lopez interrupted him to say that only the breath test as available. Officer Elam then said, "As the officer stated, the only thing we have available here is breath." Appellant agreed to take the breath test and never requested a blood test. It was undisputed that Officer Lopez was not qualified to draw blood, but it was also undisputed that a blood test was available twenty-four hours a day at Commonwealth Access, a hospital "right down the street here" from the Detention Center. The evidence established that Commonwealth Access was used regularly by the police for the drawing of blood. Appellant testified that she would have requested a blood test had she known it was available, because her attorney had advised her that its results were usually more accurate. She never made such a request,
however, for "it didn't occur to to question the Officer's statement when he told that it was not available."
Code § 18.2-268(C) provides that a motorist arrested for driving under the influence of alcohol has a statutory right to choose between a blood and breath test if required to take such a test pursuant to the implied consent law of subsection (B). "If either the blood test or the breath test is not available, then the available test shall be taken." Code § 18.2-268(C). Once the driver has elected which test he prefers to take, " has a right to receive the benefits of [that] test." Breeden v. Commonwealth, 15 Va. App. 148, 150, 421 S.E.2d 674, 675 (1992). "Failure to provide the requested test . . . deprives the accused of a significant method of establishing his innocence." Id. at 150, 421 S.E.2d at 676 (citing Driver v. Commonwealth, 6 Va. App. 583, 587, 371 S.E.2d 27, 30 (1988)). If the Commonwealth contends that the driver's test of choice was "not available" within the meaning of subsection (C), it bears the burden of showing that this unavailability is reasonable. Id. at 150, 421 S.E.2d at 675-76. As we stated in Driver v. Commonwealth, "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." 6 Va. App. at 585-86, 371 S.E.2d at 28. Finally, if the unavailability of the test is found to be unreasonable, "mere suppression of the result of the test not requested . . . does not cure the deprivation
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