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Virginia Beach DUI Attorney – Chesapeake DUI Lawyer : § 18.2-268.11. Substantial compliance.

The steps set forth in §§ 18.2-268.2 through 18.2-268.9 relating to taking, handling, identifying, and disposing of blood or breath samples are procedural and not substantive. Substantial compliance shall be sufficient. Failure to comply with any steps or portions thereof shall not of itself be grounds for finding the defendant not guilty, but shall go to the weight of the evidence and shall be considered with all the evidence in the case; however, the defendant shall have the right to introduce evidence on his own behalf to show noncompliance with the aforesaid procedures or any part thereof, and that as a result his rights were prejudiced.


FAILURE TO COMPLY WITH BLOOD-TAKING PROCEDURE GOES TO WEIGHT OF EVIDENCE
. –The question of how blood is taken is procedural, and a failure to comply with the directed procedures goes to the weight of the evidence and is to be considered with all the evidence in the case, with the right to the defendant to show noncompliance and resulting prejudice. Shumate v. Commonwealth, 207 Va. 877, 153 S.E.2d 257 (1967) (decided under former § 18.2-268).

With respect to regularity of the test, the defendant has the right to prove noncompliance with test procedures, but such proof would not defeat admissibility of the certificate but only affect its weight as evidence of the alcoholic content of his blood. Stroupe v. Commonwealth, 215 Va. 243, 207 S.E.2d 894 (1974) (decided under former § 18.2-268).

Where the statute requires that when the Commonwealth draws blood for the purposes of an alcohol or drug test, the part of the body from which the blood is taken must be cleaned with "soap and water, polyvinylpyrrolidone iodine or benzalkonium chloride," but the record stated that "benadine" was used to clean appellant’s arm, and nothing in the record supported the argument that using "benadine" substantially complied with the statute, then a finding of substantial compliance could not be supported. Hudson v. Commonwealth, 21 Va. App. 184, 462 S.E.2d 913 (1995).