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.
REFUSAL TO PERMIT BLOOD OR BREATH TEST IMMATERIAL. –This section makes evidence of an accused’s refusal to permit a blood or breath sample to be taken immaterial, or not a proper issue, in a driving under the influence prosecution, except where a defendant raises the issue, in which case evidence of a refusal to take a test becomes material for rebuttal, but evidence of the refusal must be relevant to the material issue raised by the defendant’s evidence. Calhoun v. Commonwealth, 35 Va. App. 506, 546 S.E.2d 239, 2001 Va. App. LEXIS 279 (2001).
AND REFUSAL TO TAKE TEST IS NOT PROBATIVE EXCEPT IN REBUTTAL. –A defendant’s refusal to take a blood or breath test has no probative value as to guilt or innocence and is not relevant or material, except in rebuttal when the defendant raises an issue pertaining to the offer of, or failure to take, the test. Calhoun v. Commonwealth, 35 Va. App. 506, 546 S.E.2d 239, 2001 Va. App. LEXIS 279 (2001).
TEST RESULTS PRESUMPTIVE. –Because the blood alcohol concentration reflected by the chemical test necessarily resulted from alcohol consumed prior to or during driving, the test results are presumptive evidence of the blood alcohol concentration at the time of driving and as such, the accused may challenge the test results by competent evidence, such as, for example, that he had not consumed enough alcohol in the relevant time to reach the level indicated by the chemical test results. Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989) (decided under former § 18.2-168).
GUILT OR INNOCENCE DETERMINED FROM ALL EVIDENCE OF DEFENDANT’S CONDITION. –The statutory mandate is that the guilt or innocence of the accused be determined from all the evidence of his condition at the time of the alleged offense, with or without a breath analysis. Brooks v. City of Newport News, 224 Va. 311, 295 S.E.2d 801 (1982) (decided under former § 18.2-268).