Virginia Beach DUI Attorney – Chesapeake DUI Lawyer : § 18.2-268.7. Transmission of blood test samples; use as evidence.

A. Upon receipt of a blood sample forwarded to the Department for analysis pursuant to § 18.2-268.6, the Department shall have it examined for its alcohol or drug or both alcohol and drug content and the Director shall execute a certificate of analysis indicating the name of the accused; the date, time and by whom the blood sample was received and examined; a statement that the seal on the vial had not been broken or otherwise tampered with; a statement that the container and vial were provided or approved by the Department and that the vial was one to which the completed withdrawal certificate was attached; and a statement of the sample’s alcohol or drug or both alcohol and drug content. The Director shall remove the withdrawal certificate from the vial, attach it to the certificate of analysis and state in the certificate of analysis that it was so removed and attached. The certificate of analysis with the withdrawal certificate shall be returned to the clerk of the court in which the charge will be heard.

B. After completion of the analysis, the Department shall preserve the remainder of the blood until 90 days have lapsed from the date the blood was drawn. During this 90-day period, the accused may, by motion filed before the court in which the charge will be heard, with notice to the Department, request an order directing the Department to transmit the remainder of the blood sample to an independent laboratory retained by the accused for analysis. The Department shall destroy the remainder of the blood sample if no notice of a motion to transmit the remaining blood sample is received during the 90-day period.

C. When a blood sample taken in accordance with the provisions of §§ 18.2-268.2 through 18.2-268.6 is forwarded for analysis to the Department, a report of the test results shall be filed in that office. Upon proper identification of the certificate of withdrawal, the certificate of analysis, with the withdrawal certificate attached, shall, when attested by the Director, be admissible in any court as evidence of the facts therein stated and of the results of such analysis (i) in any criminal proceeding, provided the requirements of subsection A of § 19.2-187.1 have been satisfied and the accused has not objected to the admission of the certificate pursuant to subsection B of § 19.2-187.1, or (ii) in any civil proceeding. On motion of the accused, the report of analysis prepared for the remaining blood sample shall be admissible in evidence provided the report is duly attested by a person performing such analysis and the independent laboratory that performed the analysis is accredited or certified to conduct forensic blood alcohol/drug testing by one or more of the following bodies: American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB); College of American Pathologists (CAP); United States Department of Health and Human Services Substance Abuse and Mental Health Services Administration (SAMHSA); or American Board of Forensic Toxicology (ABFT).

Upon request of the person whose blood was analyzed, the test results shall be made available to him.

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 § 18.2-268).

COMMONWEALTH’S FAILURE TO PRODUCE TEST RESULTS. –When the accused requests the Commonwealth’s results, and the Commonwealth does not possess and/or cannot produce the results, the Commonwealth must explain the absence of test results. Wendel v. Commonwealth, 12 Va. App. 958, 407 S.E.2d 690 (1991) (decided under former § 18.2-268).

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).