Opinion
Record No. 2104-92-2
February 22, 1994
FROM THE CIRCUIT COURT OF HANOVER COUNTY RICHARD H. C. TAYLOR, JUDGE.
(Barry W. Norwood, on brief), for appellant. Appellant submitting on brief.
(Stephen D. Rosenthal, Attorney General; H. Elizabeth Shaffer, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.
Present: Judges Benton, Koontz and Elder.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Wilson Mead Broach was arrested and convicted for driving a motor vehicle while under the influence of alcohol. On appeal, he contends that the trial judge erred in ruling: (1) that a Hanover County deputy sheriff lawfully stopped and arrested him in an adjoining county; (2) that he was not entitled to a blood test following the arrest; and (3) that a statutory amendment could be applied upon his conviction even though it was not in effect at the time of his arrest. We reverse the conviction because Broach was denied a blood test following his arrest.
I.
A Hanover County deputy sheriff testified that he observed Broach's vehicle swerve across both the left and right travel lanes on a highway in Hanover County. After the vehicle swerved five to ten times within one and one-half miles, the deputy sheriff decided to stop the vehicle to investigate whether the driver was intoxicated. The deputy sheriff activated his emergency lights and siren approximately 200 feet from a bridge which separates Hanover and Henrico Counties. Broach crossed the bridge into Henrico County and stopped his vehicle more than 300 yards from the county line. The deputy sheriff testified that Broach was not attempting to elude him.
After the deputy sheriff approached Broach's vehicle, he noticed that Broach had red eyes, a red complexion, and a strong odor of alcohol about his person. He said that Broach also was talkative. The deputy sheriff asked Broach to exit the vehicle and perform three tasks. Broach touched his nose with his finger to the deputy sheriff's satisfaction. However, Broach swayed while attempting to stand on one leg. When attempting to walk heel to toe, Broach stopped walking to steady himself, missed touching his heel to his toe six times, and stepped off the line he was told to follow. The deputy sheriff then arrested Broach, advised him of the implied consent law, and explained that the blood test was unavailable in Hanover County. The deputy sheriff took Broach back into Hanover County and administered the breath test. Broach's blood alcohol concentration was .14 percent.
II.
"[A] motorist arrested for driving under the influence of alcohol has a statutory right to choose between a blood and breath test if required to take such a test pursuant to the implied consent law." Sullivan v. Commonwealth, ___ Va. App. ___, ___, 437 S.E.2d 242, 243 (1993). "If either the blood test or the breath test is not available, then the available test shall be taken." Code § 18.2-268(C).
In Sullivan, as in this case, the arresting officer informed the driver that the blood test was not available. ___ Va. App. at ___, 437 S.E.2d at 243. This Court held in Sullivan:
[A] defendant has no affirmative duty to demand a blood test in order to be entitled to one under the statute. Rather, the burden rests on the Commonwealth to instruct a defendant as to her or his options under the implied consent law. If the defendant "consents" to one test or the other without being fully informed of her or his options under the statute, the defendant has not truly "elected" one test over the other as required by the law. If a court later determines that the disputed test was available within the meaning of Code § 18.2-268, the Commonwealth's failure to offer this test constitutes a violation of the implied consent law.
Id. at ___, 437 S.E.2d at 244. See also Snead v. Commonwealth, ___ Va. App. ___, ___, 437 S.E.2d 239, 241 (1993).
For the reasons stated in Snead, a case that also arose in Hanover County, the county's "declar[ation] as a policy matter that blood tests are unavailable to persons charged with DUI in that jurisdiction" does not satisfy the burden of proving that the "means for taking a blood sample . . . was unavailable." ___ Va. App. at ___, 437 S.E.2d at 241. The record established that the sheriff sent letters to six "medical facilities" inquiring whether they would provide "services . . . 24 hours a day, 7 days a week." None indicated an interest. The record also established that doctors and nurses are located in the county, that the officials of the county have not contacted any of those persons, and that officials in the county have not advertised for persons who might be reasonably available to administer the blood test. See id. Moreover, the record establishes that blood tests are available in Henrico County, the adjoining jurisdiction where Broach was stopped. Accordingly, the evidence failed to prove that the blood test was unavailable. Because we reverse the conviction for failure to prove the blood test was unavailable, we need not address the remaining issues raised by Broach.
Reversed and dismissed.