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Breeden v. Commonwealth9/29/1992
OPINION BY JUDGE LARRY G. ELDER
Brenda Breeden, appellant, appeals from her conviction of driving under the influence of alcohol in violation of Code § 18.2-266(ii). She contends that she should not have been convicted of the charge because the Commonwealth denied her the right to a blood test without showing that a blood test was unavailable. We find that her right to a blood test was denied when she was refused such a test without a showing that it was unavailable. As a result, we hold that the charge of driving while under the influence of alcohol should have been dismissed because the denial of her right to a blood test deprived her of an opportunity to prove her innocence.
After being stopped by a police officer for failing to obey a stop sign, the appellant was arrested for driving while under the influence of alcohol. On being advised of the implied consent law, appellant requested a blood test. Officer Kesner informed appellant that no such test was available. She then requested a blood test from the University of Virginia Hospital, but Kesner responded that no one was available at the hospital to administer the test. Kesner informed her that, because a blood test was not possible, she would have to submit to a breath test. She agreed to do so, and a test was administered.
Neither Kesner nor anyone else checked with the University of Virginia hospital to determine whether such a test could, in fact, be administered. The trial court sustained an objection to the admission of the breath test results by appellant's counsel on the ground that the Commonwealth had failed to substantiate why a blood test had not been available. However, the trial court denied her motion to strike the Commonwealth's evidence on the ground that she was denied the
right to a blood test and also denied her motion to dismiss the charges against her.
In Virginia, by the very act of driving, a driver has already consented to both a blood test and a breath test. Code § 18.2-268(B). If properly confronted, all drivers must submit to a blood test or a breath test. Id.
Anyone arrested for driving under the influence of alcohol may "elect to have either the blood or breath sample taken, but not both." Code § 18.2-268(C). The driver arrested for operating a motor vehicle under the influence of alcohol has a statutory right to choose one of the two tests if he or she was required to take a test pursuant to the implied consent of Code § 18.2-268(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). Moreover, "it shall not be a matter of defense if the blood test or the breath test is not available." Id.
A driver cannot be convicted of unreasonably refusing to take a blood or breath test "without an adequate explanation from the government as to why one of the tests was unavailable." Driver v. Commonwealth, 6 Va. App. 583, 585, 371 S.E.2d 27, 28 (1988). While the charge in this case is driving under the influence as opposed to a refusal to submit to blood or breath testing, the same principle logically applies to a charge of driving under the influence. Once the Commonwealth has elected to have a driver take a blood or breath test pursuant to Code § 18.2-268, the driver has a right to receive the benefits of the test. Also, the Commonwealth must establish the reasons for the unavailability of one of the tests before denying a driver his or her test of choice. Failure to provide the requested test under these circumstances depriv
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