Evidence of violation of driving under the influence offenses (§ 18.2-268.10)—Virginia Decoded

Evidence of violation of driving under the influence offenses

A. In any trial for a violation of § 18.2-266, 18.2-266.1, or subsection B of § 18.2-272 or a similar ordinance, the admission of the blood or breath test results shall not limit the introduction of any other relevant evidence bearing upon any question at issue before the court, and the court shall, regardless of the result of any blood or breath tests, consider other relevant admissible evidence of the condition of the accused. If the test results indicate the presence of any drug other than alcohol, the test results shall be admissible, except in a prosecution under clause (v) of § 18.2-266, only if other competent evidence has been presented to relate the presence of the drug or drugs to the impairment of the accused’s ability to drive or operate any motor vehicle, engine or train safely.

B. The failure of an accused to permit a blood or breath sample to be taken to determine the alcohol or drug content of his blood is not evidence and shall not be subject to comment by the Commonwealth at the trial of the case, except in rebuttal or pursuant to subsection C; nor shall the fact that a blood or breath test had been offered the accused be evidence or the subject of comment by the Commonwealth, except in rebuttal or pursuant to subsection C.

C. Evidence of a finding against the defendant under § 18.2-268.3 for his unreasonable refusal to permit a blood or breath sample to be taken to determine the alcohol or drug content of his blood shall be admissible into evidence, upon the motion of the Commonwealth or the defendant, for the sole purpose of explaining the absence at trial of a chemical test of such sample. When admitted pursuant to this subsection such evidence shall not be considered evidence of the accused’s guilt.

D. The court or jury trying the case involving a violation of clause (ii), (iii) or (iv) of § 18.2-266 or § 18.2-266.1, or a similar ordinance shall determine the innocence or guilt of the defendant from all the evidence concerning his condition at the time of the alleged offense.

History

1992, c. 830; 1994, cc. 359, 363; 2001, c. 654; 2004, c. 1013; 2005, cc. 616, 757, 840.

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Court Decisions

Thurston v. City of Lynchburg (COA, 12/15/92)
. . . of alcohol. In either case, however, Code § 18.2-268.10 speaks to that which must be determined by . . .

Cutright v. Com. (COA, 08/17/04)
. . . , 483, 424 S.E.2d 701, 705-06 (1992); Code § 18.2-268.10(D) ("The court or jury trying the case . . .

Yap v. Com. (COA, 04/24/07)
. . . read and construe Code § 18.2-269 with Code § 18.2-268.10, which reads in pertinent part: . . .

Oliver v. Com. (COA, 03/04/03)
. . . under the influence of alcohol or drugs. Code § 18.2-268.10 states, "the admission of the blood or . . .

Carvin Calhoun v. Commonwealth of Virginia (COA, 05/22/01)
. . . 873 (1998) (citations omitted). . . .

Grant v. Com. (COA, 09/01/09)
. . . 18.2-268.12 in 1992. 1992 Va. Acts 1475. Code § 18.2-268.10(A) currently states, in pertinent part: . . .

United States v. Barber (District Court, E.D. Virginia, 02/09/05)
. . . blood is not evidence." Va.Code Ann. § 18.2-268.10. . . .

Gregory Edward Leonard, II v. Commonwealth of Virginia (COA, 04/26/16)
. . . at the time of the alleged offense.” Code § 18.2-268.10(D) . . .

REVI, LLC v. Chicago Title Insurance Co. (SCV, 09/17/15)
. . . 16.1-113, 18.2-61(B), 18.2-67.5:1, 18.2-248(C), 18.2-268.10(D), . . .

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