A. In any trial for a violation of § 18.2-266, 18.2-266.1, or subsection B of § 18.2-272 or a similar ordinance, the admission of the blood or breath test results shall not limit the introduction of any other relevant evidence bearing upon any question at issue before the court, 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. If the test results indicate the presence of any drug other than alcohol, the test results shall be admissible, except in a prosecution under clause (v) of § 18.2-266, only if other competent evidence has been presented to relate the presence of the drug or drugs to the impairment of the accused's ability to drive or operate any motor vehicle, engine or train safely.
B. The failure of an accused to permit a blood or breath sample to be taken to determine the alcohol or drug content of his blood is not evidence and shall not be subject to comment by the Commonwealth at the trial of the case, except in rebuttal or pursuant to subsection C; nor shall the fact that a blood or breath test had been offered the accused be evidence or the subject of comment by the Commonwealth, except in rebuttal or pursuant to subsection C.
C. Evidence of a finding against the defendant under § 18.2-268.3 for his unreasonable refusal to permit a blood or breath sample to be taken to determine the alcohol or drug content of his blood shall be admissible into evidence, upon the motion of the Commonwealth or the defendant, for the sole purpose of explaining the absence at trial of a chemical test of such sample. When admitted pursuant to this subsection such evidence shall not be considered evidence of the accused's guilt.
D. The court or jury trying the case involving a violation of clause (ii), (iii) or (iv) of § 18.2-266 or § 18.2-266.1, or a similar ordinance shall determine the innocence or guilt of the defendant from all the evidence concerning his condition at the time of the alleged offense.
1992, c. 830; 1994, cc. 359, 363; 2001, c. 654; 2004, c. 1013; 2005, cc. 616, 757, 840.
Notes of Decisions
Cited in
31
cases (
6 in the last 5 years), 1992–2026 · leading case:
Oliver v. Commonwealth, 577 S.E.2d 514 (Va. Ct. App. 2003).
Oliver v. Commonwealth, 577 S.E.2d 514 (Va. Ct. App. 2003).
· cites it 8× “Code § 18.2-268.10 states, "the admission of the blood or breath test results shall not limit the introduction of any other relevant evidence .”
Yap v. Commonwealth, 643 S.E.2d 523 (Va. Ct. App. 2007).
· cites it 6× “2-272 or a similar ordinance, the admission of the blood or breath test results shall not limit the introduction of any other relevant evidence bearing upon any question at issue before the court, and the court shall, regardless of the result of any blood or breath tests,…”
Sean Patrick Wolfe v. Commonwealth of Virginia, 793 S.E.2d 811 (Va. Ct. App. 2016).
· cites it 4× “Appellant argues that Code § 18.2-268.10 prohibits the Commonwealth from commenting on his failure to permit a breath or blood sample to be taken.”
Cutright v. Commonwealth, 601 S.E.2d 1 (Va. Ct. App. 2004).
· cites it 4× “”); Code § 18.2-268.10(A) (providing that the "court shall, regardless of the result of any blood or breath tests, consider other relevant admissible evidence of the condition of the accused”).”
Thurston v. City of Lynchburg, 424 S.E.2d 701 (Va. Ct. App. 1992).
· cites it 4× “In either case, however, Code § 18.2-268.10 speaks to that which must be determined by the trial court.”
Hammond v. Commonwealth, 439 S.E.2d 877 (Va. Ct. App. 1994).
· cites it 12× “The trial court sustained the Commonwealth’s objection, relying on Code § 18.2-268.10. 2 The Commonwealth argues that Code § 18.”
Hammond v. Commonwealth, 429 S.E.2d 631 (Va. Ct. App. 1993).
· cites it 16× “The trial court sustained the Commonwealth’s objection, relying on Code § 18.2-268.10. The Commonwealth argues that Code § 18.”
State v. Randall, 880 S.E.2d 134 (Ga. 2022).
· cites it 2× “6 Va. Code Ann. § 18.2-268.10 (C) provides: Evidence of a finding against the defendant under § 18.”
Grant v. Commonwealth, 682 S.E.2d 84 (Va. Ct. App. 2009).
· cites it 2× “Code § 18.2-268.10(A) currently states, in pertinent part: In any trial for a violation of § 18.”
Carvin Calhoun v. Commonwealth of Virginia, 546 S.E.2d 239 (Va. Ct. App. 2001).
· cites it 2× “Code § 18.2-268.10 addresses the admissibility of evidence pertaining to a person’s refusal to take a blood or breath test: The failure of an accused to permit a blood or breath sample to be taken to determine the alcohol or drug content of his blood is not evidence and shall…”
Commonwealth v. Stump, 69 Va. Cir. 433 (Roanoke County Cir. Ct. 2006).
· cites it 22× “This is abundantly clear from Va. Code § 18.2-268.10, part of the Commonwealth’s DUI statutes, that provides that “the court shall, regardless of the result of any blood or breath tests, consider other relevant admissible evidence of the condition of the accused.”
Richetta Veronique Hammonds v. Commonwealth of Virginia (Va. Ct. App. 2024).
· cites it 9× “9 Subsection C of Code § 18.2-268.10 permits evidence of the defendant’s “unreasonable refusal to permit a blood or breath sample to be taken” to be admitted “for the sole purpose of explaining the absence at trial of a chemical test.”
— Va. Code Ann. § 18.2-268.10(0) — 1 case
— Va. Code Ann. § 18.2-268.10(A) — 5 cases
Yap v. Commonwealth, 643 S.E.2d 523 (Va. Ct. App. 2007).
“2-272 or a similar ordinance, the admission of the blood or breath test results shall not limit the introduction of any other relevant evidence bearing upon any question at issue before the court, and the court shall, regardless of the result of any blood or breath tests,…”
Cutright v. Commonwealth, 601 S.E.2d 1 (Va. Ct. App. 2004).
“”); Code § 18.2-268.10(A) (providing that the "court shall, regardless of the result of any blood or breath tests, consider other relevant admissible evidence of the condition of the accused”).”
Grant v. Commonwealth, 682 S.E.2d 84 (Va. Ct. App. 2009).
“Code § 18.2-268.10(A) currently states, in pertinent part: In any trial for a violation of § 18.”
Commonwealth v. Stump, 69 Va. Cir. 433 (Roanoke County Cir. Ct. 2006).
“This is abundantly clear from Va. Code § 18.2-268.10, part of the Commonwealth’s DUI statutes, that provides that “the court shall, regardless of the result of any blood or breath tests, consider other relevant admissible evidence of the condition of the accused.”
— Va. Code Ann. § 18.2-268.10(B) — 3 cases
Sean Patrick Wolfe v. Commonwealth of Virginia, 793 S.E.2d 811 (Va. Ct. App. 2016).
“Appellant argues that Code § 18.2-268.10 prohibits the Commonwealth from commenting on his failure to permit a breath or blood sample to be taken.”
Richetta Veronique Hammonds v. Commonwealth of Virginia (Va. Ct. App. 2024).
“9 Subsection C of Code § 18.2-268.10 permits evidence of the defendant’s “unreasonable refusal to permit a blood or breath sample to be taken” to be admitted “for the sole purpose of explaining the absence at trial of a chemical test.”
— Va. Code Ann. § 18.2-268.10(C) — 1 case
— Va. Code Ann. § 18.2-268.10(D) — 5 cases
Cutright v. Commonwealth, 601 S.E.2d 1 (Va. Ct. App. 2004).
“”); Code § 18.2-268.10(A) (providing that the "court shall, regardless of the result of any blood or breath tests, consider other relevant admissible evidence of the condition of the accused”).”
Commonwealth v. Stump, 69 Va. Cir. 433 (Roanoke County Cir. Ct. 2006).
“This is abundantly clear from Va. Code § 18.2-268.10, part of the Commonwealth’s DUI statutes, that provides that “the court shall, regardless of the result of any blood or breath tests, consider other relevant admissible evidence of the condition of the accused.”
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