COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Fitzpatrick and 

 Senior Judge Hodges 

Argued at Alexandria, Virginia 

BARIE TYRONE POLHAMUS 

v. Record No. 1703-94-4 MEMORANDUM OPINION* BY 

 JUDGE WILLIAM H. HODGES 

COMMONWEALTH OF VIRGINIA OCTOBER 31, 1995 

FROM THE CIRCUIT COURT OF RAPPAHANNOCK COUNTY 

William Shore Robertson, Judge 

 Roger A. Inger (Massie, Inger, Boyd & Iden, 

P.C., on brief), for appellant. 

 Robert B. Beasley, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 

 Barie Tyrone Polhamus (appellant) was convicted of driving 

under the influence of alcohol, second offense in ten years. On 

appeal, appellant contends that the Commonwealth failed to prove 

that a blood test, to measure his blood alcohol content, was 

reasonably unavailable at the time of his arrest. We disagree 

and affirm the judgment of the trial court. 

 I. 

 At 5:35 p.m., on Sunday, January 30, 1994, in Rappahannock 

County, Virginia State Trooper Sean Knick stopped appellant for 

speeding. As a result of the stop, Knick charged appellant with 

driving under the influence of alcohol. Knick advised appellant 

of the implied consent law, but told him that in Rappahannock 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

 

County, no blood test was available. A breath test subsequently 

was administered to appellant, who voiced no objection to that 

test. The test showed a blood alcohol content of .15 percent by 

weight by volume. 

 Trooper Knick testified that he was the only trooper on duty 

in Rappahannock County at the time he stopped appellant. Knick 

testified that he was aware of no facility or qualified person 

authorized to perform the blood test in Rappahannock County, that 

during the five and one-half years he had worked as a trooper he 

had never been aware of such a facility or person located in the 

county, and that the State Police policy during that entire 

period had been that no blood test was available in Rappahannock 

County. 

 Knick stated that the nearest facility available for a blood 

test would be Fauquier Hospital in Warrenton. The trooper was 

not permitted to leave Rappahannock County without first 

notifying his supervisor. Knick testified that had he left 

Rappahannock County to take appellant to Fauquier Hospital, a 

trip which would have required over an hour to complete, no 

trooper would have been on duty in Rappahannock County. 

 Trooper Knick and Rappahannock County Sheriff John Woodward 

testified that state troopers, not sheriff's deputies, 

investigate traffic accidents in Rappahannock County.1

 Sheriff 

 1An exception, not applicable in this case, is a minor 

traffic accident, without injury, which occurs during the 

midnight shift. 
 3 

Woodward testified that during the 4:00 p.m. to midnight shift on 

Saturdays and Sundays, two deputies are on patrol, in a single 

car, in the county. Woodward stated that the deputies are not 

permitted to leave Rappahannock County. 

 Woodward also testified that, with the exception of a period 

of six to nine months when a Ms. Rustic performed blood tests, he 

was aware of no facility or individual in the county that was 

authorized to draw or analyze blood. The Rappahannock Medical 

Center, the only clinic facility in the county, had refused to 

administer the blood test.2

 The policy of the sheriff's 

department was that a blood test was not available. 

 The trial court, relying on this Court's opinion in Talley 

v. Commonwealth, 16 Va. App. 473, 431 S.E.2d 65 (1993), found 

that the unavailability of the blood test, under these 

circumstances, was reasonable. Appellant, thereafter, entered a 

conditional guilty plea to the charge. 

 II. 

 Code § 18.2-268.2(B), in effect at the time of appellant's 

arrest, provided that a motorist arrested for driving under the 

influence of alcohol "shall elect to have either a blood or 

breath sample taken . . . . "3

 

 2The Commonwealth introduced letters, dated September 10, 

1985, and June 15, 1994, from Dr. Jerry W. Martin, of the 

Rappahannock Medical Center, to the Commonwealth's Attorney, 

Peter Luke, stating the clinic's unavailability for such tests. 

 3Effective January 1, 1995, Code § 18.2-268(B) requires that 

an arrested person "shall submit to a breath test. If the breath 

test is unavailable or the person is physically unable to submit 
 4 

 If either test is unavailable, the accused 

must take the available test, and the 

unavailability of the other test may not be 

asserted as a defense. Only if both tests 

are available is the accused entitled to 

choose the test to be administered. Once an 

accused elects to take either the blood or 

the breath test, if the election is not 

honored because of unavailability, the 

Commonwealth must establish a valid reason 

for the lack of availability of the test 

requested. 

Snead v. Commonwealth, 17 Va. App. 372, 374, 437 S.E.2d 239, 241 

(1993) (citation omitted). "The reasonableness of the 

Commonwealth's explanation is determined from a review of all the 

facts, and courts must subject these facts to particular scrutiny 

when 'office procedures' are cited in support of an assertion 

that one test was unavailable at the time of the defendant's 

arrest." Commonwealth v. Gray, 248 Va. 633, 636, 449 S.E.2d 807, 

809 (1994). 

 An accused, moreover, has no duty to demand a particular 

test in order to be entitled to it. Rather, the Commonwealth is 

required to instruct an accused as to his or her statutory 

options. Sullivan v. Commonwealth, 17 Va. App. 376, 379, 437 

S.E.2d 242, 244 (1993). "If the defendant 'consents' to one test 

or the other without being fully informed of her or his options 

under the statute, the defendant has not truly 'elected' one test 

over the other as required by law." Id.

 In Talley, the Powhatan County Sheriff's Department had a 

 

to the breath test, a blood test shall be given." 
 5 

policy whereby after-hours blood tests could be obtained at a 

hospital in nearby Chesterfield County, "as long as more than one 

field officer was on duty to cover the county." Talley, 16 Va. 

App. at 476, 431 S.E.2d at 67. Talley was arrested by a Powhatan 

sheriff's deputy one minute before the only other deputy on duty 

was scheduled to end his shift. The arresting officer advised 

Talley that he believed the blood test to be unavailable. In 

fact, the deputy scheduled to go off duty administered the breath 

test, over forty minutes after Talley's arrest. 

 We held in Talley that "the policy in this case was neither 

arbitrary nor capricious; facially or as applied, the policy was 

reasonable in order to ensure that one field deputy was available 

within the county at all times." Talley, 16 Va. App. at 476, 431 

S.E.2d at 67. See also Mason v. Commonwealth, 15 Va. App. 583, 

585-86, 425 S.E.2d 544, 545-46 (1993) (Commonwealth established 

reasonable basis for unavailability of blood test where arresting 

officer was only state police officer on duty in Powhatan County 

on evening of arrest, and he had orders not to leave the county). 

 Here, Trooper Knick was the only state trooper on duty in 

Rappahannock County at the time of appellant's arrest. State 

troopers investigate all traffic accidents in the county during 

the evening shift. Knick could not leave the county without 

first notifying his supervisor. At most, the sheriff's 

department had only two deputies, in one vehicle, patrolling the 

roads, and the sheriff forbade his deputies to leave the county. 
 6 

 No facility or individual authorized to administer the blood 

test was known to be available in Rappahannock County at the time 

of appellant's arrest.4

 

 In this case, as in Talley, the policy that a blood test was 

unavailable in Rappahannock County is neither arbitrary nor 

capricious, but was reasonable based on the limited number of 

officers available to serve the locality and the absence of 

facilities or persons within the county to administer such tests. 

 We hold that the trial court did not err in finding that the 

Commonwealth had provided a reasonable explanation for the 

unavailability of the blood test. Accordingly, we affirm 

appellant's conviction. 

 Affirmed. 

 

 4This case is distinguishable from Snead v. Commonwealth, 17 

Va. App. 372, 437 S.E.2d 239 (1993). In Snead, "[t]he 

Commonwealth's evidence proved only that, as a matter of police 

department policy, no public facility for taking a blood sample 

is available on a twenty-four hour basis in Hanover County." 17 

Va. App. at 374-75, 437 S.E.2d at 241. In this case, Sheriff 

Woodward testified that the clinic in Rappahannock had refused. 

He also stated that no one other than Ms. Rustic, temporarily, 

had been available to perform the test. He testified that no 

doctor maintains an office in the county, and no laboratory 

authorized to draw or analyze blood is located there. When asked 

if he was aware of any registered nurse, lab technician or other 

private facility, Woodward stated, "None to my knowledge that has 

ever come forward." On cross-examination, Woodward stated that 

he was aware from a previous court case that two doctors, who 

work in Culpeper, live in Rappahannock County.