blood or breath test in Virginia

2016Pertaining to the General Assembly’s adoption of the language in Code § 3.1-796.115(0 regarding the “procedure for appeal and trial” and the burden of proof at the hearing, we relied upon the Virginia Supreme Court’s decision in Commonwealth v. Rafferty, 241 Va. 319, 321-22 , 402 S.E.2d 17, 18-19 (1991), which concerned the appropriate appellate jurisdiction in a case involving unreasonable refusal of a blood or breath test.

2016Pertaining to the General Assembly’s adoption of the language in Code § 3.1-796.115(0 regarding the “procedure for appeal and trial” and the burden of proof at the hearing, we relied upon the Virginia Supreme Court’s decision in Commonwealth v. Rafferty, 241 Va. 319, 321-22 , 402 S.E.2d 17, 18-19 (1991), which concerned the appropriate appellate jurisdiction in a case involving unreasonable refusal of a blood or breath test.

2006However, “[t]he results of a blood or breath test provided by [the implied consent law] are admissible against the accused in a trial for driving under the influence of alcohol [only] so long as the accused has first been validly arrested.” Durant v. Suffolk, 4 Va.App. 445, 448, 358 S.E.2d 732, 734 (1987).

2006However, “[t]he results of a blood or breath test provided by [the implied consent law] are admissible against the accused in a trial for driving under the influence of alcohol [only] so long as the accused has first been validly arrested.” Durant v. Suffolk, 4 Va.App. 445, 448, 358 S.E.2d 732, 734 (1987).

2001However, we merely said in Brame that “[b]ecause a charge of unreasonably refusing to submit to a blood or breath test is not criminal but administrative and civil in nature, an appeal lies directly to this Court.” 252 Va. at 126 , 476 S.E.2d at 179 .

2001However, we merely said in Brame that “[b]ecause a charge of unreasonably refusing to submit to a blood or breath test is not criminal but administrative and civil in nature, an appeal lies directly to this Court.” 252 Va. at 126 , 476 S.E.2d at 179 .

1999See e.g., Overbee v. Commonwealth, 227 Va. 238, 242-43 , 315 S.E.2d 242, 243-44 (1984); Thomas v. Town of Marion, 226 Va. 251, 254 , 308 S.E.2d 120, 122 (1983); see also Castillo v. Commonwealth, 21 Va.App. 482, 486 , 465 S.E.2d 146, 148 (1995); Durant v. City of Suffolk, 4 Va.App. 445, 448-49 , 358 S.E.2d 732, 734 (1987).

1999See e.g., Overbee v. Commonwealth, 227 Va. 238, 242-43 , 315 S.E.2d 242, 243-44 (1984); Thomas v. Town of Marion, 226 Va. 251, 254 , 308 S.E.2d 120, 122 (1983); see also Castillo v. Commonwealth, 21 Va.App. 482, 486 , 465 S.E.2d 146, 148 (1995); Durant v. City of Suffolk, 4 Va.App. 445, 448-49 , 358 S.E.2d 732, 734 (1987).

2005As we held in Breeden , “[o]nce 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.” 15 Va.App. at 150 , 421 S.E.2d at 675 .

2005As we held in Breeden , “[o]nce 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.” 15 Va.App. at 150 , 421 S.E.2d at 675 .

2016See also Cash v. Commonwealth, 251 Va. 46, 49 , 466 S.E.2d 736, 738 (1996) (holding that “[t]he consent to submit to a blood or breath test, granted when a person operates a motor vehicle upon the highways, ‘is not a qualified consent and it is not a conditional consent, and therefore there can be no qualified refusal or conditional refusal to take the test’ ” (quoting Deaner, 210 Va. at 292 , 170 S.E.2d at 204 )).

2016See also Cash v. Commonwealth, 251 Va. 46, 49 , 466 S.E.2d 736, 738 (1996) (holding that “[t]he consent to submit to a blood or breath test, granted when a person operates a motor vehicle upon the highways, ‘is not a qualified consent and it is not a conditional consent, and therefore there can be no qualified refusal or conditional refusal to take the test’ ” (quoting Deaner, 210 Va. at 292 , 170 S.E.2d at 204 )).

2016See also Cash v. Commonwealth, 251 Va. 46, 49 , 466 S.E.2d 736, 738 (1996) (holding that “[t]he consent to submit to a blood or breath test, granted when a person operates a motor vehicle upon the highways, ‘is not a qualified consent and it is not a conditional consent, and therefore there can be no qualified refusal or conditional refusal to take the test’ ” (quoting Deaner, 210 Va. at 292 , 170 S.E.2d at 204 )).

2016See also Cash v. Commonwealth, 251 Va. 46, 49 , 466 S.E.2d 736, 738 (1996) (holding that “[t]he consent to submit to a blood or breath test, granted when a person operates a motor vehicle upon the highways, ‘is not a qualified consent and it is not a conditional consent, and therefore there can be no qualified refusal or conditional refusal to take the test’ ” (quoting Deaner, 210 Va. at 292 , 170 S.E.2d at 204 )).

2003Code § 18.2-268.10 states, “the admission of the blood or breath test results shall not limit the introduction of any other relevant evidence ... and the court shall, regardless of the result of any blood or breath tests, consider other relevant admissible evidence of the condition of the accused.” “The result of a breath analysis is but auxiliary proof which may tend to corroborate evidence of the objective symptoms____” Brooks v. City of Newport News, 224 Va. 311, 315-16 , 295 S.E.2d 801, 804 (1982).

2003Code § 18.2-268.10 states, “the admission of the blood or breath test results shall not limit the introduction of any other relevant evidence ... and the court shall, regardless of the result of any blood or breath tests, consider other relevant admissible evidence of the condition of the accused.” “The result of a breath analysis is but auxiliary proof which may tend to corroborate evidence of the objective symptoms____” Brooks v. City of Newport News, 224 Va. 311, 315-16 , 295 S.E.2d 801, 804 (1982).

1999See Hammond, v. Commonwealth, 17 Va.App. 565, 568 , 439 S.E.2d 877, 879 (1994) (en banc) (holding that request of accused to take a blood or breath test, under circumstances where Code § 18.2-268.2 required accused to take test, “prove[d] nothing about [the] guilt or innocence [of the accused]” such that evidence was not relevant and trial court did not err in refusing to admit it).

1999See Hammond, v. Commonwealth, 17 Va.App. 565, 568 , 439 S.E.2d 877, 879 (1994) (en banc) (holding that request of accused to take a blood or breath test, under circumstances where Code § 18.2-268.2 required accused to take test, “prove[d] nothing about [the] guilt or innocence [of the accused]” such that evidence was not relevant and trial court did not err in refusing to admit it).

2024Further, “[t]est results from a breath or blood test are not necessary or required to prove driving under the influence of alcohol.” Oliver v. Commonwealth, 40 Va. App. 20, 24 (2003). “[T]he admission of the blood or breath test results shall not limit the introduction of any other relevant evidence . . . and [the fact finder] shall, regardless of the result of any blood or breath tests, consider other relevant admissible evidence of the condition of the accused.” Code § 18.2-268.10. - 13 - Based on the totality of the evidence in this record, a reasonable fact finder could have concluded beyo

2024Code § 18.2-268.10(B) prohibits the Commonwealth from commenting on or presenting evidence of “[t]he failure of an accused to permit a blood or breath sample to be taken to determine the alcohol or drug content of [her] blood” or an offer of “a blood or breath test . . . except in rebuttal or pursuant to subsection C.”9 “[W]here a defendant raises the issue” the “evidence of a refusal to take a test becomes material for rebuttal.” Calhoun v. Commonwealth, 35 Va. App. 506, 509 (2001).

2021See Bristol v. Commonwealth, 272 Va. 568, 574-75 (2006).

2021See Bristol v. Commonwealth, 272 Va. 568, 574-75 (2006). 9 II.

2009The Court based its holding on the plain language of the statute: “Code § 18.2-269 expressly provides that the presumptions it creates arise only when a blood-alcohol test is conducted ‘in accordance with the provi *728 sions of [§§ 18.2-268.1 through 18.2-268.12].’ ” Id. (internal citations omitted) (emphasis added); see also Groggins v. Commonwealth, 34 Va.App. 19, 23 , 537 S.E.2d 605, 607 (2000) (“Those presumptions apply only when a blood or breath test is administered pursuant to Code §§ 18.2-268.1 through - 268.12.”).

2009The Court based its holding on the plain language of the statute: “Code § 18.2-269 expressly provides that the presumptions it creates arise only when a blood-alcohol test is conducted ‘in accordance with the provi *728 sions of [§§ 18.2-268.1 through 18.2-268.12].’ ” Id. (internal citations omitted) (emphasis added); see also Groggins v. Commonwealth, 34 Va.App. 19, 23 , 537 S.E.2d 605, 607 (2000) (“Those presumptions apply only when a blood or breath test is administered pursuant to Code §§ 18.2-268.1 through - 268.12.”).

2007See Burns v. Board of Supervisors, 227 Va. 354, 360 , 315 S.E.2d 856, 860 (1984) (“Where the General Assembly acts in an area in which [the Supreme] Court has already spoken, it is presumed to know the law as the Court has stated it and to acquiesce therein.”); Burke v. Commonwealth, 29 Va.App. 183, 188 , 510 S.E.2d 743, 745-46 (1999) (‘When new provisions are added to existing legislation by amendment, we presume that, in making such amendment, the legislature ‘acted with full knowledge of and in reference to the existing law upon the same subject and the construction placed upon it by the co

2007See Burns v. Board of Supervisors, 227 Va. 354, 360 , 315 S.E.2d 856, 860 (1984) (“Where the General Assembly acts in an area in which [the Supreme] Court has already spoken, it is presumed to know the law as the Court has stated it and to acquiesce therein.”); Burke v. Commonwealth, 29 Va.App. 183, 188 , 510 S.E.2d 743, 745-46 (1999) (‘When new provisions are added to existing legislation by amendment, we presume that, in making such amendment, the legislature ‘acted with full knowledge of and in reference to the existing law upon the same subject and the construction placed upon it by the co

2007See Burns v. Board of Supervisors, 227 Va. 354, 360 , 315 S.E.2d 856, 860 (1984) (“Where the General Assembly acts in an area in which [the Supreme] Court has already spoken, it is presumed to know the law as the Court has stated it and to acquiesce therein.”); Burke v. Commonwealth, 29 Va.App. 183, 188 , 510 S.E.2d 743, 745-46 (1999) (‘When new provisions are added to existing legislation by amendment, we presume that, in making such amendment, the legislature ‘acted with full knowledge of and in reference to the existing law upon the same subject and the construction placed upon it by the co

2007See Burns v. Board of Supervisors, 227 Va. 354, 360 , 315 S.E.2d 856, 860 (1984) (“Where the General Assembly acts in an area in which [the Supreme] Court has already spoken, it is presumed to know the law as the Court has stated it and to acquiesce therein.”); Burke v. Commonwealth, 29 Va.App. 183, 188 , 510 S.E.2d 743, 745-46 (1999) (‘When new provisions are added to existing legislation by amendment, we presume that, in making such amendment, the legislature ‘acted with full knowledge of and in reference to the existing law upon the same subject and the construction placed upon it by the co

2006Absent a valid, timely arrest, “the Commonwealth has no right to collect the [blood or breath] sample in the first place and, a fortiori, even less right to offer into evidence test results based on the sample.” Cutright v. Commonwealth, 43 Va.App. 593, 601 , 601 S.E.2d 1, 5 (2004).

2006Absent a valid, timely arrest, “the Commonwealth has no right to collect the [blood or breath] sample in the first place and, a fortiori, even less right to offer into evidence test results based on the sample.” Cutright v. Commonwealth, 43 Va.App. 593, 601 , 601 S.E.2d 1, 5 (2004).

2006If the blood or breath test “reveals a blood alcohol concentration of .08% or more, the Commonwealth is entitled to a rebuttable presumption that the person was intoxicated.” Smith v. Commonwealth, 32 Va.App. 228, 233 , 527 S.E.2d 456, 459 (2000) (citing Code § 18.2-269).

2006If the blood or breath test “reveals a blood alcohol concentration of .08% or more, the Commonwealth is entitled to a rebuttable presumption that the person was intoxicated.” Smith v. Commonwealth, 32 Va.App. 228, 233 , 527 S.E.2d 456, 459 (2000) (citing Code § 18.2-269).

2001The Supreme Court has held that “proceedings to revoke parole or probation ... are civil in nature.... ” Heacock v. Commonwealth, 228 Va. 235, 242 , 321 S.E.2d 645, 649 (1984) (citing Gagnon v. Scarpelli, 411 U.S. 778, 782 , 93 S.Ct. 1756, 1759 , 36 L.Ed.2d 656 (1973)).

2001The Supreme Court has held that “proceedings to revoke parole or probation ... are civil in nature.... ” Heacock v. Commonwealth, 228 Va. 235, 242 , 321 S.E.2d 645, 649 (1984) (citing Gagnon v. Scarpelli, 411 U.S. 778, 782 , 93 S.Ct. 1756, 1759 , 36 L.Ed.2d 656 (1973)).

2000In Commonwealth v. Rafferty, 241 Va. 319 , 402 S.E.2d 17 (1991), we construed former Code § 18.2-268(Q), which provided that an executed certificate of refusal to take a blood or breath test “shall be attached to the warrant.” We said, “ ‘[a] statute directing the mode of proceeding by public officers is to be deemed directory, and a precise compliance is not to be deemed essential to the validity of the proceedings, unless so declared by statute.’ ” 241 Va. at 324-25 , 402 S.E.2d at 20 (quoting Nelms v. Vaughan, 84 Va. 696, 699 , 5 S.E. 704, 706 (1888)).

2000In Commonwealth v. Rafferty, 241 Va. 319 , 402 S.E.2d 17 (1991), we construed former Code § 18.2-268(Q), which provided that an executed certificate of refusal to take a blood or breath test “shall be attached to the warrant.” We said, “ ‘[a] statute directing the mode of proceeding by public officers is to be deemed directory, and a precise compliance is not to be deemed essential to the validity of the proceedings, unless so declared by statute.’ ” 241 Va. at 324-25 , 402 S.E.2d at 20 (quoting Nelms v. Vaughan, 84 Va. 696, 699 , 5 S.E. 704, 706 (1888)).