COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Lemons and Senior Judge Hodges 

Argued at Alexandria, Virginia 

GEORGE LAMAY 

 OPINION BY 

v. Record No. 2965-97-4 JUDGE WILLIAM H. HODGES 

 APRIL 13, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Benjamin N.A. Kendrick, Judge 

 (Judy A. Dugger, on briefs), for appellant. 

Appellant submitting on briefs. 

 Richard Barton Campbell, Assistant Attorney 

General (Mark L. Earley, Attorney General, 

on brief), for appellee. 

 George Lamay (appellant) appeals his conviction for driving 

while intoxicated (DUI). He contends the trial court erred when 

it refused to allow testimony at his DUI trial relating to his 

alleged physical inability to take a breath test following his 

DUI arrest. Appellant argues that, under the DUI statutes, his 

inability to take a breath test required the Commonwealth to 

provide him a blood test; absent a blood alcohol test, appellant 

asserts that the trial court erred in refusing to dismiss the 

case. Appellant also contends that, due to numerous 

contradictions and discrepancies in the evidence, the evidence 

was insufficient to prove his guilt. For the reasons that 

follow, we reverse appellant's conviction and remand. 
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I. 

 Arlington County Police Officer George Lichtenberg arrested 

appellant on June 7, 1997, and charged him with driving under 

the influence of alcohol. At the police station, Lichtenberg 

advised appellant of the implied consent law and about the 

breath test. The police never obtained breath test results. 

The police also charged appellant with refusing to take a breath 

test in violation of Code § 18.2-268.3. 

 II. 

DUI Trial in District Court 

 On August 7, 1997, the Arlington County General District 

Court convicted appellant of DUI and sentenced him to sixty days 

in jail, with fifty-four days suspended. In addition, the court 

fined him $1,500, with $1,000 suspended, and ordered him to be 

of good behavior and attend and successfully complete an alcohol 

safety program. The court suspended his driver's license for 

one year and granted him a restricted license, allowing him to 

travel to and from work during working hours. 

Refusal Trial in District Court 

 On September 11, 1997, the Arlington County General 

District Court tried appellant on the charge of refusing to 

submit to a breath test. See Code § 18.2-268.3. The district 

court dismissed the charge. 
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DUI Trial De Novo in Circuit Court 

 At appellant's October 30, 1997 trial de novo before the 

circuit court on the DUI charge, Officer Lichtenberg testified 

about the events surrounding the stop, arrest and attempt to 

administer a breath test to appellant. During 

cross-examination, defense counsel asked Lichtenberg what 

happened after he advised appellant of the implied consent law. 

The Commonwealth objected on the basis of relevance. Defense 

counsel argued, "I would ask that I be allowed to ask what 

happened at the booking," but the trial judge sustained the 

objection. 

 After the Commonwealth rested, appellant testified. When 

defense counsel asked appellant about "blow[ing] into the 

[breathalyzer] machine," the Commonwealth objected on the basis 

of relevance. Appellant contended that evidence surrounding the 

administration of the breath test was necessary so the trial 

court could determine "whether or not provisions of 18.2-268 

have been violated." The following exchange ensued: 

 [DEFENSE COUNSEL]: I would proffer to the 

court that the Defendant's testimony will be 

that he was asked to take the breath test, 

and was told to breath [sic] deeply, in 

preparation for breathing deeply into this 

machine, that doing so caused him to incur a 

fit of coughing because of his asthma that 

he has been suffering from for a number of 

years. He tried to breath [sic] into the 

machine a number of times. As a result of 

the coughing because of the asthma, he was 

not able to do so. He was taken before the 
- 4 - 

 magistrate and he was asked to try the test 

again. He could not because of his coughing 

and he was issued a citation for refusal. 

 THE COURT: That's not before that [sic] 

court. 

 Defense counsel argued that Code § 18.2-268.2 requires that 

a "'blood test shall be given'" if "'the breath test is 

unavailable or the person is physically unable to submit to a 

breath test.'" Counsel made the following argument: 

 That's mandatory. "Shall be given." I will 

proffer to the Court that not only was it 

not given, it was not even offered. And 

that is a violation of 18.2-268.2, and there 

is a long line of cases that talks about it. 

He was deprived of his opportunity to 

produce evidence that would establish his 

innocence in violation of this code section. 

We can't bring that to the Court's attention 

without this evidence. If we bring this to 

the Court's attention and the Court agrees 

it's a violation, the remedy pursuant to the 

[case law] out of the Court of Appeals is 

dismissal of the prosecution of the D.W.I. 

because he was deprived of the statutory 

right to present evidence in his own defense 

in as much as 18.2-268.2 says that the blood 

test shall be given, and it was not even 

offered in this case. 

 If it had been offered and he had 

refused that, we wouldn't be standing here, 

or at least I wouldn't be making the 

argument, but the evidence was that it was 

not even offered, let alone required, that 

is a violation. And it requires a dismissal 

of the prosecution as a remedy. 

 The Commonwealth argued that, because a driver no longer 

has a choice of tests, such evidence was relevant only to the 

refusal charge. The trial judge sustained the objection. The 
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prosecution also asserted that trial should proceed and 

appellant's guilt should be determined from the other evidence. 

 Defense counsel countered that appellant was deprived of 

his right to present possibly exculpatory evidence, after which 

the following exchange took place: 

 THE COURT: So you're saying because he 

started coughing and couldn't conduct the 

test that they offered, they should have 

given him a blood test -- 

 [DEFENSE COUNSEL]: The statute says so. 

 THE COURT: And because they didn't give him 

a blood test, this case should be dismissed? 

 [DEFENSE COUNSEL]: Yes, sir. 

 THE COURT: Your exception is noted. 

 After refusing appellant's testimony about the breath test, 

the trial court allowed defense witness Marietta Warden to 

testify as an expert about the effect of alcohol on a person's 

blood alcohol level, and to render an opinion about appellant's 

behavior and blood alcohol level based on the amount of alcohol 

appellant told her he had consumed.1 In response to the trial 

court's questions, Warden said that appellant told her he was an 

asthmatic and that he had suffered an asthmatic attack the night 

he was arrested. 

 1Warden did not meet with appellant at the time of his June 

7, 1997 arrest; instead, she interviewed him on June 25, 1997 

and on July 16, 1997, during which time appellant provided 

background data upon which Warden based her opinions. 
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 After the parties rested, defense counsel raised "[o]ne 

tidy bookkeeping matter." "In order for the record to be 

complete and to preserve all this," and "for purposes of the 

evidentiary basis for the renewal of the motion to strike," 

defense counsel introduced Exhibits 5 and 6. Exhibit 5 is a 

copy of the summons for the refusal charge from the district 

court indicating that the refusal charge was dismissed, and 

Exhibit 6 is entitled "Certificate of Refusal--Breath/Blood 

Test." Exhibit 6 is signed by the magistrate, and under the 

magistrate's signature is a handwritten notation regarding the 

breath test refusal. Defense counsel asked the trial judge "to 

take them and mark them," and "take judicial notice of the 

Court's own records." The following colloquy took place: 

 [DEFENSE COUNSEL]: For the purpose of the 

record, I renew the motion to strike that 

was entered earlier. The Court has probably 

heard the totality of the argument in 

addressing the Commonwealth's objections to 

the admissibility of that basis evidence. 

Let me just reiterate so the record is 

complete, that it's based on a violation of 

the [sic] 18.2-268.3B inasmuch as the 

statute requires that if the breath test is 

unavailable or the person is physically 

unable to submit to the breath test, a blood 

test can be given and that was not done in 

this case. 

 THE COURT: The record will reflect that 

five and six are admitted for the purposes 

stated. 

 [DEFENSE COUNSEL]: Yes, sir. 

 
- 7 - 

 THE COURT: And your motion to strike is 

denied and your exception is noted. 

 [DEFENSE COUNSEL]: And we ask the Court to 

take judicial notice of the Court's own 

records, you will see the certified copies 

of not only the refusal certificate issued 

by the magistrate, and made a part of the 

General District Court records with 

reference to the trial of the charge of 

refusal itself and the warrant charging Mr. 

Lamay with refusal. Also, the back side of 

each of those documents, specifically the 

refusal wherein the case was tried, and I'm 

not certain, in a civil case, it says not 

guilty, it says charge dismissed. It's not 

a criminal case, it can't be guilty or not 

guilty. It does indicate it was dismissed. 

 THE COURT: I don't believe that it is in 

this file. It has its own file, I think. 

And that file. 

 [DEFENSE COUNSEL]: This is a General 

District Court file from which those were 

extracted and the clerk certified them on 

the flip side. 

 THE COURT: I will take judicial notice. 

It's not in this file, you're aware of that? 

 [DEFENSE COUNSEL]: That is correct. 

 THE COURT: That will be part of the record. 

 Beneath the magistrate's signature on Exhibit 6 is the 

following handwritten statement: "Accused gave insufficient 

sample and would not answer when asked if he wished to try the 

test again." 

 After hearing argument regarding some discrepancies between 

Lichtenberg's testimony and the testimony of appellant, the 

trial court found appellant "not a credible witness" and found 
- 8 - 

 

him guilty of DUI. The court sentenced appellant to twelve 

months in jail with all but ninety days suspended. The court 

also fined appellant $2,500. On December 12, 1997, the court 

denied appellant's motion for reconsideration. 

III. 

 Appellant contends the trial court erred in refusing to 

allow testimony relating to the failure of the police to comply 

with the requirement that when a person is physically unable to 

submit to a breath test, a blood test shall be given.2 We have 

not had an opportunity to construe fully the provisions of Code 

§ 18.2-268.2 since its effective revision date of January 1, 

1995. Therefore, this case comes before us as one of first 

impression and requires us to analyze Code § 18.2-268.2(B) in 

situations where at his or her DUI trial an accused DUI driver 

alleges physical inability to take a breath test. We must 

determine, under the limited facts of this case, what evidence 

is admissible, the procedures to follow, and what remedy, if 

any, should issue. 

 2Appellant raises two other issues: whether there was error 

in the trial court's refusal to dismiss the case due to the 

Commonwealth's alleged failure to follow the statute, and 

whether there was error in the trial court's failure to find a 

reasonable doubt as to appellant's guilt, given the alleged 

discrepancies in the evidence presented at trial. Because of 

our decision to remand based on an evidentiary error, we do not 

reach either of these issues on appeal. 
- 9 - 

 IV. 

Code § 18.2-268.2(B) 

(Implied Consent to Post-Arrest Chemical Test) 

 Code § 18.2-268.2 was revised by the legislature in 1994 by 

"Acts 1994, cc. 359 and 363." It took effect on January 1, 

1995. Before the revision, Code § 18.2-268.2(B) offered a 

choice as to which test to take and provided as follows: 

 Any person so arrested for a violation 

of § 18.2-266(i) or (ii) or both, or 

§ 18.2-266.1 or of a similar ordinance shall 

elect to have either a blood or breath 

sample taken, but not both. If either the 

blood test or breath test is not available, 

then the available test shall be taken and 

it shall not be a matter of defense if the 

blood test or the breath test is not 

available. If the accused elects a breath 

test, he shall be entitled upon request, to 

observe the process of analysis and to see 

the blood-alcohol reading on the equipment 

used to perform the breath test. If the 

equipment automatically produces a written 

printout of the breath test result, the 

printout or a copy, shall be given to the 

accused. 

 The current version of Code § 18.2-268.2(B) provides as 

follows: 

 Any person so arrested for a violation 

of § 18.2-266(i) or (ii) or both, or 

 § 18.2-266.1 or of a similar ordinance shall 

submit to a breath test. If the breath test 

is unavailable or the person is physically 

unable to submit to the breath test, a blood 

test shall be given. The accused shall, 

prior to administration of the test, be 

advised by the person administering the test 

that he has the right to observe the process 

of analysis and to see the blood-alcohol 

reading on the equipment used to perform the 
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breath test. If the equipment automatically 

produces a written printout of the breath 

test result, the printout, or a copy, shall 

be given to the accused. 

 In its 1995 revision, the legislature eliminated the 

driver's option to elect which test to take and mandated that a 

driver accused of DUI "shall submit to a breath test." Only 

when a breath test is unavailable or the accused is physically 

unable to take one, is a blood test to be given. 

 Under the former statute, the legislature mandated that if 

one test is unavailable, "then the available test shall be 

taken." (Emphasis added.) The revised statute provides that if 

the breath test is unavailable or the person is physically 

unable to take it, "a blood test shall be given." (Emphasis 

added.) 

Code § 18.2-268.3 

 (The Refusal Statute) 

 The current version of Code § 18.2-268.3, the refusal 

statute, reads in pertinent part: 

A. If a person, after having been arrested 

for a violation of §§ 18.2-51.4, 18.2-266 or 

§ 18.2-266.1 or of a similar ordinance and 

after having been advised by the arresting 

officer that a person who operates a motor 

vehicle upon a public highway in this 

Commonwealth is deemed thereby, as a 

condition of such operation, to have 

consented to have samples of his blood and 

breath taken for chemical tests to determine 

the alcohol or drug content of his blood, 

and that the unreasonable refusal to do so 

constitutes grounds for the revocation of 
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the privilege of operating a motor vehicle 

upon the highways of this Commonwealth, 

refuses to permit blood or breath or both 

blood and breath samples to be taken for 

such tests, the arresting officer shall take 

the person before a committing magistrate. 

If he again so refuses after having been 

further advised by the magistrate of the law 

requiring blood or breath samples to be 

taken and the penalty for refusal, and so 

declares again his refusal in writing upon a 

form provided by the Supreme Court, or 

refuses or fails to so declare in writing 

and such fact is certified as prescribed 

below, then no blood or breath samples shall 

be taken even though he may later request 

them. 

B. The form shall contain a brief statement 

of the law requiring the taking of blood or 

breath samples and the penalty for refusal, 

a declaration of refusal, and lines for the 

signature of the person from whom the blood 

or breath sample is sought, the date, and 

the signature of a witness to the signing. 

If the person refuses or fails to execute 

the declaration, the magistrate shall 

certify such fact and that the magistrate 

advised the person that a refusal to permit 

a blood or breath sample to be taken, if 

found to be unreasonable, constitutes 

grounds for revocation of the person's 

privilege to operate a motor vehicle on the 

highways of this Commonwealth. The 

magistrate shall promptly issue a warrant or 

summons charging the person with a violation 

of § 18.2-268.2. The warrant or summons 

shall be executed in the same manner as 

criminal warrants. 

* * * * * * * 

E. The declaration of refusal or 

certificate of the magistrate shall be prima 

facie evidence that the defendant refused to 

allow a blood or breath sample to be taken 

to determine the alcohol or drug content of 
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his blood. However, this shall not prohibit 

the defendant from introducing on his behalf 

evidence of the basis for his refusal. The 

court shall determine the reasonableness of 

such refusal. 

 

 V. 

Admissibility of Evidence Describing the Unsuccessful 

Attempt to Give the Breath Test 

 "The admissibility of evidence is within the broad 

discretion of the trial court, and a ruling will not be 

disturbed on appeal in the absence of an abuse of discretion." 

Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 

(1988) (citation omitted). 

 Code § 18.2-268.2(A), the implied consent law, mandates 

that any person arrested for violating Code § 18.2-266 within 

two hours of such offense "shall be deemed thereby as a 

condition of such [vehicular] operation, to have consented to 

have samples of his blood, breath, or both blood and breath 

taken for a chemical test to determine the" alcohol and/or drug 

content of his or her blood. Subsection (B) mandates that a 

"person so arrested" for such violations "shall submit to a 

breath test." The subsection further directs that "[i]f the 

breath test is unavailable or the person is physically unable to 

submit to the breath test, a blood test shall be given." 

 In Walton v. City of Roanoke, 204 Va. 678, 133 S.E.2d 315 

(1963), the defendant alleged that admission of blood alcohol 

test results violated his constitutional privilege against 
- 13 - 

self-incrimination. The Supreme Court rejected that argument, 

and, in dicta, explained the following about Virginia's former 

implied consent statute: 

The provisions of [the implied consent law] 

serve a salutary purpose. A chemical 

analysis of one's blood provides a 

scientifically accurate method of 

determining whether a person is intoxicated, 

removes the question from the field of 

speculation and supplies the best evidence 

for that determination. It protects one who 

has the odor of alcohol on his breath but 

has not been drinking to excess, and one 

whose conduct may create the appearance of 

intoxication when he is suffering from some 

physical condition over which he has no 

control. 

Id. at 683, 133 S.E.2d at 319 (emphases added). 

 Although present Code § 18.2-268.2 requires only a breath 

test, there remain three statutorily defined situations allowing 

or justifying the administration of a blood test rather than a 

breath test: (1) unavailability of a breath test; (2) a 

violation of Code § 18.2-266(iii) or (iv), involving the use of 

other drugs; and (3) a suspect's physical inability to take a 

breath test. 

Unavailability 

 Under the former DUI statute that offered drivers the 

choice of a blood or breath test, the Commonwealth could assert 

that one of the tests was unavailable when a suspected driver 

was not provided the test that he or she elected. 
- 14 - 

 In Breeden v. Commonwealth, 15 Va. App. 148, 150, 421 

S.E.2d 674, 675 (1992), decided under former Code § 18.2-268(C), 

we placed the burden on the Commonwealth to establish that a 

requested test was unavailable. We held that "the Commonwealth 

must establish the reasons for the unavailability of one of the 

tests before denying a driver his or her test of choice." Id.

at 150, 421 S.E.2d at 675-76. We explained that "[o]nce the 

Commonwealth has elected to have a driver take a blood or breath 

test pursuant to Code § 18.2-268, the driver has a right to 

receive the benefits of the test" and that "the Commonwealth 

must establish the reasons for the unavailability of one of the 

tests before denying a driver his or her test of choice." Id. 

In light of Breeden, we have consistently assigned the 

Commonwealth the burden to explain the unavailability of a 

requested test. See, e.g., Commonwealth v. Gray, 248 Va. 633, 

636, 449 S.E.2d 807, 809 (1994) (affirming refusal conviction, 

holding that when accused chooses particular test, "and that 

test cannot be administered because it allegedly is 

unavailable," the Commonwealth must establish a reasonable basis 

to support such finding); Herring v. Commonwealth, 28 Va. App. 

588, 591, 507 S.E.2d 638, 639 (1998) (holding that the 

Commonwealth bears the burden of establishing that a breath test 

was unavailable); Walker v. City of Lynchburg, 22 Va. App. 197, 

198, 468 S.E.2d 164, 165 (1996) (holding that Commonwealth 
- 15 - 

satisfied its burden and "provided sufficient basis to determine 

unavailability of the [requested] blood test" under former Code 

§ 18.2-268.2); Snead v. Commonwealth, 17 Va. App. 372, 374, 437 

S.E.2d 239, 241 (1993) (holding that if an election is not 

honored because of unavailability, the Commonwealth must 

establish a valid reason for the lack of availability of the 

test requested); Sullivan v. Commonwealth, 17 Va. App. 376, 378, 

437 S.E.2d 242, 243 (1993) (holding that Commonwealth "bears the 

burden of showing" that unavailability of requested tests was 

reasonable); Mason v. Commonwealth, 15 Va. App. 583, 585, 425 

S.E.2d 544, 545 (1993) (holding that "[i]f one of the tests is 

unavailable the government must provide a reasonable explanation 

for its unavailability"). 

 "Finally, if the unavailability of the test is found to be 

unreasonable, '[m]ere suppression of the result of the test not 

requested . . . does not cure the deprivation.' The only 

appropriate remedy is reversal of the conviction and dismissal 

of the charges." Sullivan, 17 Va. App. at 378, 437 S.E.2d at 

243 (quoting Breeden, 15 Va. App. at 150, 421 S.E.2d at 676). 

Physical Inability 

 By revising Code § 18.2-268.2, effective January 1, 1995, 

the legislature eliminated an accused driver's choice of tests 

but added language to accommodate situations where an accused is 

physically unable to take a breath test. These legislative 
- 16 - 

changes require us to interpret and apply the current statute in 

order to effect the legislature's intended purpose. In other 

words, we must determine how that language comes into play in a 

DUI case, who has the burden to establish physical inability, 

and what procedures are to be followed. 

 Because it is the accused driver whose physical inability 

is at issue in such situations, logic dictates that the burden 

should fall on the accused to establish that fact. After an 

accused presents evidence of his physical inability, the 

Commonwealth is entitled to present evidence in rebuttal, after 

which it rests upon the trial court to determine whether the 

accused satisfied his or her burden. 

 Here, the trial court refused to consider evidence relating 

to administration of the breath test, ostensibly because it was 

the same evidence presented in the district court trial on the 

refusal charge and, thus, was not relevant. As discussed below, 

prior case law under the former DUI statutes supports that view. 

 In Cash v. Commonwealth, 251 Va. 46, 466 S.E.2d 736 (1996), 

the defendant was charged with driving under the influence and 

with refusing to submit to a blood or breath test. The district 

court acquitted her of the DUI charge but convicted her of the 

refusal charge. See id. at 48, 466 S.E.2d at 737. She appealed 

the refusal conviction to the circuit court. 

 Pretrial, the circuit court granted the 

prosecutor's motion to exclude certain 
- 17 - 

evidence proffered by [Cash] on the 

reasonableness of her refusal to submit to 

the blood or breath test. The prosecutor 

asked the court to prohibit, for example, 

any evidence regarding defendant's sobriety 

at the time of arrest and evidence of the 

outcome of the DUI charge on the ground that 

such evidence is irrelevant to the charge of 

unreasonable refusal to submit to such test. 

Id. 

 In determining whether the trial court erred in granting 

the Commonwealth's motion and excluding such evidence, the 

Supreme Court pointed out that "the declaration of refusal or 

the magistrate's certificate is prima facie evidence that the 

defendant refused to submit to testing." Id. at 49, 466 S.E.2d 

at 737. "'However, this shall not prohibit the defendant from 

introducing on his behalf evidence of the basis of his refusal. 

The court shall determine the reasonableness of such refusal.'" 

Id. at 49, 466 S.E.2d at 738 (quoting Code § 18.2-268.3(E)). 

The Court then provided the following comments regarding the DUI 

and refusal statutes: 

[T]his Court has decided that operation of a 

motor vehicle while under the influence of 

alcohol or drugs may give rise to two 

separate and distinct proceedings--one a 

criminal action for DUI and the other a 

civil, administrative proceeding on the 

refusal charge. "Each action proceeds 

independently of the other and the outcome 

of one is of no consequence to the other." 

Id. at 49, 466 S.E.2d at 738 (quoting Deaner v. Commonwealth, 

210 Va. 285, 289, 170 S.E.2d 199, 201 (1969)). 
- 18 - 

 At her refusal trial, Cash sought to present evidence about 

the small amount of alcohol she allegedly consumed, witness 

testimony that she was not under the influence, testimony that 

her driving was not erratic, testimony about the police 

officer's abusive conduct, evidence about her satisfactory 

performance on the field sobriety tests, testimony regarding her 

requests to consult an attorney, and evidence relating to her 

expressed concern that she was being framed. See id. at 50-51, 

466 S.E.2d at 738-39. 

 The Court held that "evidence about defendant's sobriety, 

about her driving proficiency, and about her subjective belief 

that she was not under the influence of alcohol, while 

admissible in a DUI trial, was utterly inadmissible in the 

refusal trial." Id. at 51-52, 466 S.E.2d at 739. Moreover, the 

Court ruled that Cash's "desire to consult counsel 'to see what 

she could do to protect her interest from being framed' 

furnishes no legal basis for refusal to submit to testing." Id.

at 52, 466 S.E.2d at 739. In addition to detailing evidence 

that did not provide a reasonable basis for refusing a test, the 

Court also explained what type of evidence could provide a basis 

for refusal when it stated, "[i]llustrative of a refusal that 

would be deemed reasonable is when 'a person's health would be 

endangered by the withdrawal of blood.'" Id. at 50, 466 S.E.2d 

at 738 (quoting Deaner, 210 Va. at 293, 170 S.E.2d at 204). See 
- 19 - 

also Bailey v. Commonwealth, 215 Va. 130, 131, 207 S.E.2d 828, 

829 (1974) (holding that there must be some "reasonable factual 

basis for the refusal," such as, endangerment of the health of 

the accused by the withdrawal of blood). 

 The Supreme Court's explanation that DUI and refusal cases 

are separate and distinct, and its consistent pronouncement that 

evidence on one charge is usually irrelevant and inadmissible in 

a trial on the other charge, has overshadowed the revised 

portion of Code § 18.2-268.2 anticipating conditions where an 

accused is physically unable to take a breath test. 

 By including physical inability as a condition precluding 

the administration of the required test intended to benefit an 

accused driver, the legislature contemplated situations where 

physical inability would arise and evinced its intention to 

allow accused drivers to establish that fact. Under Code 

§ 18.2-268.2, if the accused satisfies that burden before the 

trial court, he or she is entitled to a blood test. Because we 

hold that, under appropriate circumstances, an accused bears the 

burden of establishing Code § 18.2-268.2(B) physical inability, 

such evidence must be and is admissible in a DUI trial. In 

summary, whereas evidence unique to a refusal charge has 

historically been precluded at a DUI trial, and vice-versa, the 

changes in Code § 18.2-268.2 require a different evidentiary 

result. 
- 20 - 

 VI. 

 For the foregoing reasons, the trial court abused its 

discretion in not permitting appellant to elicit testimony 

relating to his physical inability to take the breath test. On 

remand, the trial court is directed to permit appellant to 

present evidence regarding his physical inability to perform the 

breath test, after which the Commonwealth may present rebuttal 

evidence. The trial court must then rule whether the accused 

has sufficiently carried his burden of establishing his physical 

inability. If the trial court finds that the accused has 

fulfilled this burden and that a blood test was not offered, 

then the charge must be dismissed. Accordingly, we reverse and 

remand for proceedings consistent with this opinion. 

 Reversed and remanded.