Opinion
Record No. 1938-93-3
Decided: March 14, 1995
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY, George E. Honts, III, Judge
W. T. Robey, III, for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Barrow, Coleman and Koontz
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
John T. Taffe was tried and convicted in a bench trial for second offense driving under the influence in violation of Code Sections 18.2-266 and -270. The sole issue on appeal is whether the Commonwealth's failure to explain or account for the absence of the independent laboratory blood test results requires that we reverse the conviction.
A person accused of operating a motor vehicle upon the highways of Virginia who elects to have a blood sample drawn for analysis is entitled to have the sample tested by an independent laboratory of his or her choosing. Code Sec. 18.2-268(G) and (H); Kemp v. Commonwealth, 16 Va. App. 360, 365, 429 S.E.2d 875, 878 (1993). See also Wendel v. Commonwealth, 12 Va. App. 958, 407 S.E.2d 690 (1991) (dealing with the absence of the state laboratory test results). "[W]hen an accused asks that his blood sample be sent to an independent laboratory for testing and an independent analysis is not available at trial, the Commonwealth has the burden to explain the absence of independent test results." Kemp, 16 Va. App. at 365, 429 S.E.2d at 878. "When the Commonwealth cannot prove that it substantially complied with the statutory procedures referred to in Code Sec. 18.2-268(Z), the Commonwealth is foreclosed from prosecution." Id. at 366, 429 S.E.2d at 879.
The Commonwealth's attorney made no attempt to explain the absence of the independent laboratory test results. He merely stated that he "didn't have anything to do with [it]. It's up to the defendant." The Commonwealth receives the vial that is to be mailed to the independent laboratory, is responsible for mailing it, and for receiving and filing the test results. Without an explanation for the absence of the results, the trial judge erred by admitting the Commonwealth's certificate of analysis. See Kemp, 16 Va. App. at 366, 429 S.E.2d at 879. The Commonwealth concedes that the holding in Kemp, supra, controls this case, but asks that this Court overrule Kemp sitting en banc. However, stare decisis binds this panel to follow the Kemp decision. Burns v. Commonwealth, 240 Va. 171, 174, 395 S.E.2d 456, 457 (1990). Accordingly, we reverse the conviction and dismiss the charge.
Reversed and dismissed.