COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Alexandria, Virginia
DANFUL RAY HERRING
OPINION BY
v. Record No. 1785-97-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 8, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Porter R. Graves, Jr., Judge
Walter F. Green, IV (Green & O'Donnell, on
brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Danful Ray Herring (appellant) was convicted of driving
under the influence, first offense, in violation of Code
§ 18.2-266. 1 The sole issue in this appeal is whether the breath
test was "unavailable" within the meaning of Code § 18.2-268.2(B)
when the breathalyzer at the local jail failed to function. For
the following reasons, we affirm the DUI conviction.
I.
On November 21, 1996, Virginia State Game Warden D.W.
Herndon received a dispatch regarding a possible intoxicated
driver on Turner Run Road in George Washington National Forest.
When Herndon arrived at the specified location, he observed a
Ford pickup truck driven by appellant. He followed the truck for
1
Appellant was also convicted of refusal to take a blood or
breath test in violation of Code § 18.2-268.2, which is not at
issue in this appeal.
approximately two to three miles and observed appellant stop at
an intersection, make a wide right turn, and force an oncoming
vehicle off the road. Appellant was stopped and, after failing
two of four field sobriety tests, was arrested for driving under
the influence of alcohol.
Herndon advised appellant of the implied consent law.
Appellant requested a breath test and was taken to the Rockingham
County Jail. During the administration of the test, the
breathalyzer malfunctioned. Appellant was offered a blood test,
which he refused. Herndon took appellant before a magistrate who
again explained the implied consent law, and appellant again
refused.
Evidence at trial established that the same model
breathalyzer machine was located at the Harrisonburg Police
Department (HPD), which was down the street from the Rockingham
County Jail. However, Deputy Richard Getz, the breathalyzer
operator at the jail, stated he had never used the HPD
breathalyzer and it was not standard operating procedure to use
it. Getz also testified he had never heard of any of the
Rockingham deputies going to the HPD to use that breathalyzer.
Instead, if the jail breathalyzer malfunctioned, the next step
was to administer a blood test. A nurse was on duty at the jail
and ready to administer the blood test to appellant.
At the conclusion of the Commonwealth's case, appellant
moved to strike the evidence, contending the Commonwealth failed
-2-
to meet its burden to establish a valid reason for the
unavailability of the breath test requested by appellant. The
trial court overruled appellant's motion and convicted him of
driving under the influence, first offense, in violation of Code
§ 18.2-266.
II.
Code § 18.2-268.2(B) provides that any person arrested for
driving under the influence "shall submit to a breath test. If
the breath test is unavailable . . . a blood test shall be
given." Appellant concedes that the breathalyzer at the jail
malfunctioned; however, he argues that the breath test was still
"available" within the meaning of Code § 18.2-268.2(B) because
another breathalyzer was available at the HPD, which was located
within one block of the jail. Appellant argues the Commonwealth
failed to make a "reasonable effort to comply with [the statute]"
by transporting him to the other police station and, therefore,
the charge should have been dismissed. We disagree.
The Commonwealth bears the burden of establishing that the
breath test appellant requested was unavailable. Furthermore,
the Commonwealth must provide a reasonable explanation for its
unavailability. See Breeden v. Commonwealth, 15 Va. App. 148,
151, 421 S.E.2d 674, 676 (1992); see also Mason v. Commonwealth,
15 Va. App. 583, 585, 425 S.E.2d 544, 545 (1993) (decided under
former version of Code § 18.2-268.2(B)). In Breeden, the
defendant requested a blood test from a local hospital but was
-3-
told by officers that no one was available at the hospital to
administer the test. No officers checked with the hospital to
determine whether such a test could be given. We held the
Commonwealth failed to establish why the blood test was
unavailable within the meaning of the statute.
Similarly, in Sullivan v. Commonwealth, 17 Va. App. 376, 473
S.E.2d 242 (1993), the defendant was told by officers that the
only test available to her was a breath test. However, the
evidence established that a blood test was available twenty-four
hours each day at a local hospital down the street and that the
police used the hospital regularly for the drawing of blood. We
held in that case the blood test was "available" within the
meaning of the statute and defendant was entitled to elect which
test would be performed.
This case is distinguishable from both Breeden and Sullivan.
Unlike Breeden, Deputy Getz began to administer the breath test
requested by appellant and did not attempt to hinder appellant's
election of which test to employ. Contrary to appellant's
argument that a breathalyzer was available at the HPD and that
his case is controlled by Sullivan, no evidence was presented
that the Rockingham jail officers used that machine on a regular
basis or on any prior occasion.
We believe the instant case is controlled by Commonwealth v.
Gray, 248 Va. 633, 449 S.E.2d 807 (1994), decided subsequent to
both Breeden and Sullivan, in which the Supreme Court affirmed
-4-
defendant's refusal conviction. In that case, the sheriff's
department did not have a licensed breathalyzer operator on duty
at the time of defendant's arrest. In reviewing the department's
procedures, the Court wrote:
The reasonableness of the Commonwealth's
explanation is determined from a review of
all the facts, and courts must subject these
facts to particular scrutiny when "office
procedures" are cited in support of an
assertion that one test was unavailable at
the time of defendant's arrest.
Id. at 636, 449 S.E.2d at 809. According to department
procedures in Gray, when no officer was on duty to administer a
breath test, a blood test was to be given. The Court concluded
that the Commonwealth provided a reasonable explanation as to the
unavailability of the breath test. See id. at 636-37, 449 S.E.2d
at 810; see also Mason, 15 Va. App. at 585, 425 S.E.2d at 545
(concluding that a blood test was "unavailable" where officer was
the only officer on duty and the nearest hospital was in a
neighboring jurisdiction).
In the instant case, the officers attempted to provide
appellant with the breath test as requested. When the machine
malfunctioned, it became unavailable within the meaning of the
statute. The Commonwealth is not required to search the
surrounding areas for an otherwise available machine. No
evidence was presented that a qualified operator was on duty at
the HPD or that the deputies from the jail were allowed to use
the machine at the police department. Because the breath test
-5-
could not be successfully completed, it was unavailable, and the
Commonwealth provided a reasonable explanation for its
unavailability. See Walker v. City of Lynchburg, 22 Va. App.
197, 468 S.E.2d 164 (1996) (holding that a blood test was
unavailable when the laboratory technician was unable to draw
defendant's blood after three attempts).
Accordingly, we affirm appellant's conviction.
Affirmed.
-6-