Opinion
Record No. 2565-92-2
February 22, 1994
FROM THE CIRCUIT COURT OF HANOVER COUNTY RICHARD H. C. TAYLOR, JUDGE.
(Douglas A. Barry; Hutchens Hutchens, P.C., on brief), for appellant. Appellant submitting on brief.
(Kirby H. Porter, Assistant Commonwealth's Attorney), 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.
Charles William Skelton was convicted of driving under the influence of intoxicants in violation of Code § 18.2-266. He contends that the conviction should be reversed because (1) he was improperly denied the right to a blood test, and (2) the evidence was insufficient to prove beyond a reasonable doubt that he was driving under the influence of intoxicants. We reverse the conviction because Skelton was denied his request for a blood test.
I.
The evidence proved that at 9:55 p.m. a deputy sheriff was driving two to three car lengths behind Skelton's automobile. The deputy sheriff stopped Skelton after he observed Skelton driving 40 miles per hour in a 55 miles per hour zone, swerving several times within his lane, and on several occasions driving off the right side of the road. Skelton had a strong odor of alcohol about him and had dilated pupils.
Because of these observations, the deputy sheriff ordered Skelton to exit his automobile and perform several tasks that required Skelton to perform recitations and physical manipulations. Skelton was unable to complete these tasks. The deputy sheriff testified that, although he was acquainted with Skelton and was aware that Skelton had a serious injury affecting his legs, he nonetheless required Skelton to attempt the one leg stand test and the walk and turn test. The deputy sheriff also knew that Skelton had only completed the seventh grade. The deputy sheriff testified that Skelton admitted he had consumed one beer and had taken pain medication. The deputy sheriff also testified that Skelton said that he was in pain and asked for a blood test. The deputy sheriff did not take Skelton to have a blood test. Instead, he advised Skelton of the implied consent law and offered Skelton a breath test, which Skelton refused to take.
Skelton testified that he had lost the ability to drive an automobile for quite some time due to an illness and that at the time he was stopped he was just regaining that ability. Skelton explained that the bright lights of the car behind him were bothering him and scaring him. He said that he drove off the road in an attempt to let the car pass him. He also testified that he had numerous war wounds that had crippled him in many respects in his back and legs and, thus, he was not able to take the walk and turn test and the one leg stand test. Skelton further testified that he was not able to complete the alphabet test or the number test because of his limited education. Skelton testified that he had consumed only one beer and had been taking pain medication. He also testified that the medicine label did not indicate that the medicine could not be mixed with alcohol or that the medicine could not be taken while operating a motor vehicle.
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). "Once an accused elects to take either the blood or the breath test, if the election is not honored because of unavailability, the Commonwealth must establish a valid reason for the lack of availability of the test requested." Snead v. Commonwealth, ___ Va. App. ___, ___, 437 S.E.2d 239, 241 (1993).
The evidence is undisputed that Skelton requested a blood test. In addition, the Commonwealth offered no evidence to establish that the blood test was unavailable. Because the record does not prove that the blood test was unavailable, the conviction was invalid. Id. at ___, 437 S.E.2d at 241. Accordingly, we reverse the conviction and dismiss the proceeding.
Reversed and dismissed.