concurring in part and dissenting in part.
Well established principles guide the resolution of the issues raised by this appeal. “Trial courts must admit evidence which is material and relevant to prove or disprove an element of an offense or an affirmative defense, unless the evidence is not competent or is otherwise excluded by statute or rule of law.” Quinn v. Commonwealth, 9 Va. App. 321, 323, 388 S.E.2d 268, 270 (1990) (citing Charles E. Friend, The Law of Evidence in Virginia §§ 134-35 (2d ed. 1983)). Evidence is relevant if it tends to establish the proposition for which it is offered and is material if it relates to a matter at issue. See Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436, 441 (1987).
Applying these principles to the present case, I concur with the majority’s holding that evidence of Hammond’s acquittal on the charge of refusal to take a blood test was properly excluded at his subsequent DUI trial. Apparently, Hammond was acquitted on the refusal charge because he was able to establish he had a legally cognizable reason for refusing to take the blood test. Such a reason negates the charge of unreasonable refusal to take the test. Code § 18.2-268.3.
However, the fact of acquittal on the refusal charge is neither relevant nor material to the DUI charge. The acquittal does not tend to establish that Hammond was not guilty of the DUI charge. Evidence of his state of sobriety was not admissible in the refusal trial because such evidence was not material to the disposition of the refusal charge. See Quinn, 9 Va. App. at 324, 388 S.E.2d at 270. Conversely, at the DUI trial, the fact that Hammond had a legally cognizable reason for refusing to take the blood test does not tend to establish that he was not under the influence of alcohol at the time he drove his vehicle, nor is a reasonable refusal a matter at issue in the DUI trial.
In my view, however, the admissibility at the DUI trial of the evidence that Hammond requested to take the breath test is another matter. The majority correctly concludes that “Code § 18.2-268.10 does *352not prohibit the accused from offering evidence of the willingness to take a blood or breath test.” The language of this statute dictates that conclusion. Moreover, this case does not involve the “failure of an accused to permit [a breath] sample to be taken to determine the alcohol . . . content of his blood,” which is inadmissible at the DUI trial except as rebuttal under Code § 18.2-268.10. Hammond requested the breath test; he did not refuse it. Consequently, the admissibility of the evidence of Hammond’s request to take the breath test must be determined on general principles of relevancy and materiality.
The majority is willing to “assume” that evidence of the willingness to take a field sobriety test may be relevant to prove innocence in a DUI trial, but finds no similar relevance to a willingness to take a blood or breath test. The controlling distinction perceived by the majority is that the field sobriety test is voluntary and the breath or blood test is not. Upon that distinction, the majority concludes that the request or willingness to take the blood or breath test “does not carry with it the same indicia of being forthcoming as does the willingness to take a voluntary field sobriety test.” This may be so, but at best such a conclusion bespeaks only of the weight to be given to such evidence and not to its admissibility. Nevertheless, my primary disagreement with the reasoning of the majority is with its further conclusion that ‘ ‘the request to take the breath test under the circumstances shows nothing about [Hammond’s] innocence. Therefore the evidence is not relevant.” (emphasis added).
In my view, on the facts of this case, the evidence that Hammond requested to take a breath test was both relevant and material. The issue to be resolved at Hammond’s DUI trial was his state of sobriety at the time he operated his motor vehicle. See generally Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989). Here, no chemical tests established the state of his sobriety. Consequently, as the Commonwealth correctly asserts, Hammond’s state of sobriety had to be decided by consideration of the totality of the circumstances surrounding his conduct, including whether his objective symptoms reflected that he had consumed enough alcoholic beverages to so affect his manner, disposition, speech, muscular movement, general appearance or behavior as to be apparent to observation. See Brooks v. City of Newport News, 224 Va. 311, 315-16, 295 S.E.2d 801, 804 (1982); Code § 4-2. Thus, the admissibility of Hammond’s request to take a breath test must be determined in this context and not in a vacuum.
*353The Commonwealth offered evidence of objective facts to establish Hammond’s state of sobriety, including the results of some field sobriety tests and his admission that he had consumed two beers and one glass of wine. Evidence that Hammond requested a breath test was no less an objective fact. Although the Commonwealth asserts that it was no more than a reflection of Hammond’s subjective assessment of his sobriety, in the factual context of this case it also was an objective fact that has at least some tendency to establish the proposition for which it was offered. Hammond reasonably contends that his conduct in making the request was consistent with his assertion that he was not under the influence of the alcohol he had consumed. Although the inference he asked the trier of fact to draw is debatable and, perhaps, of only slight probative value, such does not render it irrelevant. See Jenkins v. Winchester Dep’t of Social Servs., 12 Va. App. 1178, 1186, 409 S.E.2d 16, 21 (1991) (“Evidence is relevant if it has any logical tendency, however slight, to prove a fact in issue”). Hammond’s conduct in requesting a chemical test to establish the alcoholic context of his blood is conduct consistent with innocence, and, if accepted for that purpose by the trier of fact, tends to rebut the Commonwealth’s evidence that he was under the influence of alcohol. Because whether Hammond was under the influence of the alcohol he admittedly had consumed was the only matter at issue at the DUI trial, the evidence of his request to take a breath test was also material.
For these reasons, I respectfully dissent. In my view it was error to exclude the evidence of Hammond’s request to take the breath test. Because that error was not harmless, I would reverse Hammond’s conviction and remand for a new trial if the Commonwealth be so advised.1
I am compelled to note that on similar facts an accused in Hammond’s position necessarily runs the risk of winning the battle but losing the war. Hammond requested the breath test but refused the blood test. Thus, Code § 18.2-268.10 would permit the Commonwealth to introduce in rebuttal evidence of the refusal to take the blood test.