 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Talley v. Commonwealth6/8/1993
OPINION BY JUDGE LARRY G. ELDER
Elizabeth Ann Talley appeals from her conviction for driving under the influence in violation of Code § 18.2-266. On appeal, she argues that the trial court erred in holding that the blood test she requested was unavailable within the meaning of Code § 18.2-268. For the reasons set forth below, we affirm appellant's conviction.
I.
At 12:49 a.m. on June 6, 1991, Deputy Mootz of the Powhatan County Sheriff's Department observed appellant's vehicle alternately straddling the center line, weaving, and varying its speed. Mootz stopped appellant and administered a series of field sobriety tests that led him to believe she was under the influence of alcohol. He then informed her of Virginia's implied consent law and placed her under arrest at 12:59 a.m. Mootz testified that, although he advised appellant that ordinarily she could elect between a blood and breath test, a breath test was administered because he believed the blood test to be unavailable. Although he knew that Johnston-Willis Hospital--the facility upon which the department routinely relied for blood tests at night--was open, he testified that the only other field deputy on duty was scheduled to go off duty at 1:00 a.m. He also testified that the Department's policy was that a blood test is "unavailable" when only one field officer is on duty to cover the county. On that basis, Mootz concluded that the blood test was unavailable. The evidence also showed, however, that Deputy Lane, the field deputy scheduled to go
off-duty at 1:00 a.m., was the officer who actually administered the breath test at 1:42 a.m.
At trial, appellant moved for dismissal of the charge or, alternatively, for exclusion of the results of the breath test on the ground that the blood test had been available within the meaning of Code § 18.2-268 and that she would have chosen it had it been presented as an option because she believed it more reliable. The trial court denied her motion.
II.
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, Va. App. , , 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 , 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 , 421 S.E.2d at 675-76. As we stated in Driver, "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 r
Page 1 2 3 Virginia DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|