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Hammond v. Commonwealth5/11/1993
s the evidence is not competent or is otherwise excluded by statute or rule of law." Quinn v. Commonwealth, 9 Va. App. 321, 323, 388 S.E.2d 268, 270 (1990)(citing Charles E. Friend, The Law of Evidence in Virginia §§ 134-35 (2d ed. 1983)). Evidence is relevant if it tends to establish the proposition for which it is offered and is material if it relates to a matter at issue. See Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436, 441 (1987).
Applying these principles to the present case, I concur with the majority's holding that evidence of Hammond's acquittal on the charge of refusal to take a blood test was properly excluded at his subsequent DUI trial. Apparently, Hammond was acquitted on the refusal charge because he was able to establish he had a legally cognizable reason for refusing to take the blood test. Such a reason negates the charge of unreasonable refusal to take the test. Code § 18.2-268.3.
However, the fact of acquittal on the refusal charge is neither relevant nor material to the DUI charge. The acquittal does not tend to establish that Hammond was not guilty of the DUI charges. Evidence of his state of sobriety was not admissible in the refusal trial because such evidence was not material to the Disposition of the refusal charge. See Quinn, 9 Va. App. at 324, 388 S.E.2d at 270. Conversely, at the DUI trial the fact that Hammond had a legally cognizable reason for refusing to take the blood test does not tend to establish that he was not under the influence of alcohol at the time he drove his vehicle, nor is a reasonable refusal a matter at issue in the DUI trial.
In my view, however, the admissibility at the DUI trial of the evidence that Hammond requested to take the breath test is another matter. The majority correctly concludes that "Code § 18.2-268.10 does
not prohibit the accused from offering evidence of the willingness to take a blood or breath test." The language of this statute dictates that Conclusion. Moreover, this case does not involve the "failure of an accused to permit [a breath] sample to be taken to determine the alcohol ... content of his blood," which is inadmissible at the DUI trial except as rebuttal under Code § 18.2-268.10. Hammond requested the breath test; he did not refuse it. Consequently, the admissibility of the evidence of Hammond's request to take the breath test must be determined on general principles of relevancy and materiality.
The majority is willing to "assume" that evidence of the willingness to take a field sobriety test may be relevant to prove innocence in a DUI trial, but finds no similar relevance to a willingness to take a blood or breath test. The controlling distinction perceived by the majority is that the field sobriety test is voluntary and the breath or blood test is not. Upon that distinction, the majority concludes that the request or willingness to take the blood or breath test "does not carry with it the same indicia of being forthcoming as does the willingness to take a voluntary field sobriety test." This may be so, but at best such a Conclusion bespeaks only of the weight to be given to such evidence and not to its admissibility. Nevertheless, my primary disagreement with the reasoning of the majority is with its further Conclusion that "the request to take the breath test under the circumstances shows nothing about [Hammond's] innocence. Therefore the evidence is not relevant" (emphasis added).
In my view, on the facts o
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