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Breeden v. Commonwealth9/29/1992
es the accused of a significant method of establishing his innocence. Id. at 587, 371 S.E.2d at 30. Mere suppression of the result of the test not requested, as was done in this case, does not cure the deprivation of the potential benefit of the requested test. When the legislature enacted Code § 18.2-268(C), it granted to the accused, not the Commonwealth, the option to take a blood or breath test. That election, whether based on the accused's perception of the reliability of these tests or their invasive nature, is one that this Court must honor.
The statement of facts in this case recounts the circumstances surrounding Officer Kesner's effort to ascertain whether the blood test was available.
The arresting Officer testified that he advised the defendant that a blood test was not available based on information he received from his acting sergeant. The Sergeant was called as a witness for the Commonwealth. He testified that he told the arresting Officer that he should check with the University of Virginia to determine whether they could give the blood test. The arresting Officer testified that he did not check with the University of Virginia Hospital to see whether the blood test was available, as the information he had received from the acting Sergeant was that the blood test was not available. Neither the acting Sergeant nor the arresting Officer knew of anyone who checked with anyone about the blood test being available since each thought the other had checked.
Based on these facts, we conclude that the Commonwealth failed to establish that the blood test requested by appellant was unavailable. Consequently, we are not called upon to address what constitutes a valid reason for the lack of availability of a test.
For the foregoing reasons, the judgment of the trial court is reversed and the case is dismissed.
Reversed and dismissed.
Disposition
Reversed and dismissed.
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