Opinion
Record No. 1438-93-3
Decided: November 1, 1994
FROM THE CIRCUIT COURT OF SMYTH COUNTY, Charles H. Smith, Jr., Judge
Reversed and dismissed.
Donald G. Hammer (Burke, Graybeal and Hammer, on brief), for appellant.
Eugene Murphy, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Koontz, Elder and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
William Alvin Sanders appeals his conviction for driving while intoxicated in violation of Code Sec. 18.2-266. On appeal, he contends that (1) the Commonwealth provided an insufficient explanation as to why appellant's requested breath test was unavailable; and (2) the circuit court erred by admitting the Commonwealth's certificate of analysis of blood alcohol that admittedly had been removed from the court file and altered between the general district court trial and the circuit court trial. For the reasons that follow, we reverse and dismiss appellant's conviction.
The evidence showed that after being stopped by a police officer who suspected appellant of driving while intoxicated, appellant was given the choice of submitting to either a breath test or a blood test under Code Sec. 18.2-268.2. Appellant elected to take a breath test. The officer then ascertained through the police dispatcher that no one was available to administer a breath test. Further efforts to secure someone competent to administer the test were fruitless. Appellant then consented to a blood test, which showed his blood alcohol level to be .29 percent. Appellant was convicted in the general district dourt.
During pretrial motions before the circuit court, appellant attempted to have the blood test results excluded because they did not meet the strict chain of custody requirements of Code Sec. 18.2-268.7. The certificate itself was entered into evidence over appellant's objection, and appellant was convicted in the circuit court.
Code Sec. 18.2-268.2(B) provides that a motorist arrested for driving under the influence of alcohol has a statutory right to choose between a blood test and breath test if required to take such a test pursuant to Code Sec. 18.2-268.2(A). "If either the blood test or the breath test is not available, then the available test shall be taken." Code Sec. 18.2-268.2(B). "Once the driver has elected which test he prefers to take, [he] has a right to receive the benefits of [that] test." Sullivan v. Commonwealth, ___ Va. App. ___ ___, 437 S.E.2d 242, 243 (1993). "Failure to provide the requested test . . . deprives the accused of a significant method of establishing his innocence." Breeden v. Commonwealth, 15 Va. App. 148, 150, 421 S.E.2d 674, 676 (1992). If the Commonwealth contends that the driver's test of choice was unavailable, it must establish the reasons for the unavailability of one of the tests, Sullivan, ___ Va. App. at ___, 437 S.E.2d at 243; Breeden, 15 Va. App. at 150, 421 S.E.2d at 675-76, and it bears the burden of showing that this unavailability was reasonable. Sullivan, ___ Va. App. at ___, 437 S.E.2d at 243.
On July 1, 1992, Code § 18.2-268 was amended. The amendment involved a renumbering of former Code § 18.2-268. The relevant language remains the same as between pre- and post-amended Code § 18.2-268. For example, former Code § 18.2-268(B) corresponds to current Code § 18.2-268.2(B).
The Commonwealth failed to establish a valid reason for the lack of availability of the breath test requested by appellant. According to the police dispatcher's testimony, various attempts were made to secure someone to administer the breath test. There were no officers qualified to give the test on duty at the Saltville Police Department, nor were there any personnel available in the neighboring Marion Police Department or from the state police. However, a mere assertion that no one is available does not constitute a reason for the unavailability of the test. An explanation as to why no qualified person was on duty is required.
Even though the Commonwealth made attempts to secure qualified individuals to administer the test, Driver states that where no reason is given in the record for why qualified people are unavailable, the evidence is insufficient to relieve the Commonwealth of its statutory burden. Driver v. Commonwealth, 6 Va. App. 583, 586, 371 S.E.2d 27, 29 (1988). If the Commonwealth deprives a defendant of his or her choice of test, it has the burden of providing a full and logical justification. See id. at 587, 371 S.E.2d at 30. In contrast to both Mason v. Commonwealth, 15 Va. App. 583, 425 S.E.2d 544 (1993), and Talley v. Commonwealth, 16 Va. App. 473, 431 S.E.2d 65 (1993), the Commonwealth has not met its burden in showing that an underlying policy made it reasonable for the requested test to be unavailable to appellant.
Because we reverse and dismiss on the first issue, it is not necessary to address appellant's second assignment of error.
Reversed and dismissed.