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Gray v. Commonwealth7/27/1993
MEMORANDUM OPINION JUDGE MARVIN F. COLE
John Gray was convicted in a bench trial of driving while intoxicated, his second offense. On appeal, Gray contends that the charge should have been dismissed when the Commonwealth failed to make his independent blood test results available. We agree and reverse.
On January 25, 1991 at 11:48 p.m., Lancaster County Deputy Ronald Hudson noticed that Gray's vehicle did not display a front tag. Hudson observed the car "weaving back and forth between the lines. [Gray's car] would touch the middle line and then go back to the white line . . . . He did this approximately three times" in a one and one-half mile span. After stopping the car, Hudson walked up to Gray's window and smelled "a strong odor of alcohol coming from about his person." Gray admitted that he had drunk some alcoholic beverage.
Exiting his car, Gray "stumbled forward catching himself on the door." In field sobriety tests, Gray successfully walked heel to toe in a straight line for nine steps; when asked to tilt his head back and touch the tip of his nose with either his "right or left index finger," Gray twice touched the side of his nose using both hands. However, on the third attempt he performed correctly. Gray failed to correctly recite the alphabet, leaving out the letter "F" and stopping when he got to the letter "M." After offering Gray a "preliminary screening device," Hudson placed Gray under arrest. Hudson stated that Gray was neatly dressed and cooperative when stopped.
Hudson informed Gray of the implied consent law, and Gray elected to take a blood test. Hudson drove Gray to Rappahannock General Hospital where two blood samples were taken. Hudson advised Gray of his right to an independent lab analysis, and Gray elected Northern Virginia Doctors Hospital Laboratory, 601 South Carlin Spring Road, Arlington, Virginia, a lab listed on the form presented to him.
Prior to the trial, Gray sent a certified letter to the Commonwealth's Attorney, dated September 9, 1991, requesting the results of his blood tests pursuant to former Code § 18.2-268(M), now Code § 18.2-268.7. By letter dated September 10, 1991, the Commonwealth's Attorney sent Gray a copy of the certificate of analysis of the first sample of Gray's blood received from the state laboratory, but not the second sample sent to the independent laboratory.
When the Commonwealth attempted to admit into evidence the vial of blood and certificate of analysis of the first sample, Gray objected, stating that he had not received results from the independent test. Hudson admitted that, "after the two samples came back and became aware that one of them had been returned without analysis . . . did not attempt to find out why the results of one of the tests was not available." The record shows that the form given to Gray for requesting independent lab analysis had a revision date of June 22, 1989, and that another form used by the Lancaster County Sheriff's Department has a revision date of December 4, 1990 (seven weeks before appellant's January 25, 1991 arrest). The 1990 revised form does not list Northern Virginia Doctors Hospital Laboratory as an approved independent lab. The record indicates that the second sample was returned to the court unopened and untested. The Commonwealth did not request a continuance to obtain independent test results of the sample.
The trial Judge sustained Gray's objection to the admission of the Commonwealth's test results and ruled that under Wendel v. Commonwealth, 12 Va. App. 958, 407 S.E.2d 690 (1991), "if the defendant is denied his blood analysis, then the Commonweal
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