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Breeden v. Commonwealth
Citations: 421 S.E.2d 674; 15 Va. App. 148; 9 Va. Law Rep. 400; 1992 Va. App. LEXIS 242Docket: Record No. 0480-91-2
Court: Court of Appeals of Virginia; September 29, 1992; Virginia; State Appellate Court
Brenda Breeden appealed her conviction for driving under the influence (DUI) of alcohol, arguing that her right to a blood test was denied without justification, which warranted dismissal of the charges. After being stopped for a traffic violation, Breeden requested a blood test upon being informed of the implied consent law. The arresting officer stated that no blood test was available and suggested a breath test instead, which Breeden subsequently took. However, the officer did not verify the unavailability of the blood test with the University of Virginia Hospital. The trial court sustained an objection to the admission of the breath test results on the basis that the Commonwealth failed to justify why a blood test was unavailable, but it denied Breeden's motions to strike the evidence and dismiss the charges. Under Virginia law, drivers consent to either a blood or breath test, and they have the right to choose between the two. If one test is unavailable, the available test must be administered, and the Commonwealth must provide adequate explanations for the unavailability of the requested test. The court noted that the principles governing test refusals apply equally to DUI charges. The Commonwealth must ensure that a driver has access to their test of choice, as the failure to provide this opportunity undermines the accused's ability to prove their innocence. The mere suppression of the results from a test not requested does not remedy the deprivation of the requested test. Ultimately, the court recognized that the option to choose a test was granted to the accused, not the Commonwealth, and the denial of the blood test required a dismissal of the DUI charge. The court determined that the accused's choice regarding the blood test's reliability or invasiveness must be respected. The case details the actions of Officer Kesner, who informed the defendant that a blood test was not available based on the advice from his acting sergeant. The sergeant, however, testified that he suggested the officer check with the University of Virginia for the test's availability. The arresting officer failed to do so, believing the sergeant's information was definitive. Neither officer had verified the test's availability, as each assumed the other had done so. The court concluded that the Commonwealth did not demonstrate that the requested blood test was unavailable. As a result, the court reversed the trial court's judgment and dismissed the case.