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Hammond v. Commonwealth5/11/1993
OPINION BY
CHIEF JUDGE NORMAN K. MOON
Frederick J. Hammond, appellant, seeks reversal of his driving under the influence (DUI) conviction on the grounds that the trial Judge refused to admit in evidence (1) that appellant requested a breath test that was not administered, and (2) that appellant was acquitted of refusal to take a blood test. Because evidence of the request and the acquittal were not relevant, we affirm.
On January 30, 1991, shortly after midnight, Trooper Stinson of the Virginia State Police observed the appellant's car pass through the stationary radar that Stinson was operating. Appellant was traveling at seventy-three miles per hour in a fifty-five miles per hour zone. The car crossed the broken white line. When Stinson attempted to stop the car, appellant was slow to pull over, and activated the turn signal only after he was on the shoulder of the road. The appellant had trouble locating his operator's license and he "sort of staggered" out of the car. Appellant performed some field sobriety tests. He stated he had two beers and one glass of wine. Stinson placed the appellant under arrest for driving while under the influence.
After the implied consent law was explained to him, the appellant chose to take a breath test. The operator of the testing equipment insisted that the appellant take a blood test. However, the appellant continued to insist on taking a breath test. Neither test was administered and the appellant was thereafter arrested for refusal to submit to a blood test. At the trial for the DUI offense and the blood test refusal in
the Fairfax General District Court, the appellant was found guilty of DUI but not guilty of the refusal. Appellant appealed the DUI conviction to the Fairfax Circuit Court.
At the circuit court trial for DUI, appellant's counsel attempted to introduce into evidence that appellant requested to take the breath test. The trial court sustained the Commonwealth's objection, relying on Code § 18.2-268.10. The Commonwealth argues that Code § 18.2-268.10 prohibited the admission by the appellant of the evidence concerning the request to take a breath test. We agree with the appellant's contention that that section only prohibits the Commonwealth, not the accused, from commenting on the failure of the accused to take a blood or breath test, except in rebuttal. The pertinent part of Code § 18.2-268.10 provides:
The failure of an accused to permit a blood or breath sample to be taken to determine the alcohol or drug content of his blood is not evidence and shall not be subject to comment by the Commonwealth at the trial of the case, except in rebuttal; nor shall the fact that a blood or breath test had been offered the accused be evidence or the subject of comment by the Commonwealth, except in rebuttal.
We conclude that Code § 18.2-268.10 does not prohibit the accused from offering evidence of the willingness to take a blood or breath test. However, notwithstanding our interpretation of Code § 18.2-268.10, the evidence offered by the accused surrounding the administration of the breath or blood test must be relevant in order to be admissible.
In Farmer v. Commonwealth, 12 Va. App. 337, 404 S.E.2d 371 (1991) (en banc), relied upon by the appellant, we upheld a conviction in which the Commonwealth had been allowed to introduce evidence that a defendant had refused to submit to a field sobriety test. We held that wh
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