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Talley v. Commonwealth6/8/1993
valid reason for the lack of availability of a test."
Id. at , 425 S.E.2d at 545 (citation omitted). Obviously, as in Mason, the decision must rest upon the facts of each case.
The evidence in this case did not prove that the blood test was unavailable. The Powhatan County Sheriff's Department had available to it at Johnston Willis Hospital facilities for administering blood tests at any hour. When Elizabeth Ann Talley was arrested by Deputy Mootz and taken to the sheriff's department, Deputy Lane was there and remained with Talley for approximately forty minutes before he administered the test. The record contains no reasonable explanation for the failure of Deputy Lane or Deputy Mootz to advise Talley that she had the right to a blood test and, if she had chosen it, to take Talley to the nearby hospital.
The rationale for failing to offer the blood test was unreasonable, arbitrary, and capricious. Deputy Mootz, who made the arrest, testified that the "basic policy is, if we're the only unit working that night, the blood test is not available." When Deputy Mootz stopped Talley, he was not the only deputy working. Deputy Lane was on duty. Moreover, when Deputy Mootz took Talley to the Sheriff's Department, Deputy Lane was present. Indeed, it was Deputy Lane who explained the breath test to Talley, observed her for at least twenty minutes as required by the test protocol, and administered the test to her one hour after she was stopped. That Deputy Lane remained and administered the breath test manifestly demonstrates that the policy did not apply in these circumstances, that the blood test was available to Talley, and that the failure to offer Talley the blood test was unreasonable.
I Dissent.
Judges Footnotes
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