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Gray v. Commonwealth7/27/1993
th's analysis should not be received in evidence."
Hudson was excused, and the Commonwealth rested, at which time Gray moved to strike all of the Commonwealth's evidence. Defense counsel asserted that Gray was denied the "safeguard of the defense's right to certain kinds of evidence" which was under the Commonwealth's control. The trial Judge overruled the motion to strike. Gray presented no evidence and renewed his motion to strike and to dismiss the case. The trial Judge took the case under advisement, and, by letter opinion to counsel dated September 18, 1991, ruled that the court could properly consider other evidence of intoxication, viz., the testimony of Deputy Hudson. Relying upon Brooks v. City of Newport News, 224 Va. 311, 295 S.E.2d 801 (1982), Gray was found guilty. The trial Judge explained:
The officer's description of [appellant's] demeanor at the time of his arrest clearly establishes that was under the influence at the time[, t]here being no room for reasonable doubt about Gray's actual condition at the time of his arrest . . . .
We find that the decision in this case is controlled by the principles established in Kemp v. Commonwealth, 16 Va. App. 360, 429 S.E.2d 875 (1993). In Kemp, this Court held that "when an accused asks that his blood sample be sent to an independent laboratory for testing and an independent analysis is not available at trial, the Commonwealth has the burden to explain the absence of independent test results and show that it substantially complied with the steps relating to the taking, handling, identification, and Disposition of defendant's blood and/or breath sample. The Commonwealth must prove that the unavailability of the independent test results is not due to unreasonable conduct by the Commonwealth." __ Va. App. ___, ___ S.E.2d at ___.
Former Code § 18.2-268(G), now Code § 18.2-168.6, requires the arresting or accompanying officer to give to the accused a form provided by the Division which shall set forth the procedure to obtain an independent analysis of the blood in the second container. The accused must also be given a list of those laboratories approved by the Division and their addresses. Here, the police officer gave Gray an out-of-date list of approved independent laboratories. Gray chose Northern Virginia Doctor's Hospital, a laboratory on the list; however, it was no longer an approved laboratory. The hospital returned the container to the court, unopened and untested. The Commonwealth took no further action to have the sample tested in accordance with the statutory procedure. Such conduct on the part of the Commonwealth effectively foreclosed any possibility that Gray would receive the independent laboratory analysis to which he was entitled. We find that the Commonwealth's evidence did not prove that the unavailability of the independent test results was due to reasonable conduct on the part of the Commonwealth or its agents.
"When the Commonwealth cannot prove that it substantially complied with the statutory procedures referred to in Code § 18.2-268(Z) [now Code § 18.2-268.11], the Commonwealth is foreclosed from prosecution." Kemp, __ Va. App. at ___, ___ S.E.2d at ___; see also Wendel, 12 Va. App. at 965, 407 S.E.2d at 694.
Reversed and dismissed.
Judges Footnotes
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