Robert Paul Hopson v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Willis and Senior Judge Hodges
Argued at Salem, Virginia
ROBERT PAUL HOPSON
v. Record No. 0209-94-3 MEMORANDUM OPINION * BY
JUDGE LAWRENCE L. KOONTZ, JR.
COMMONWEALTH OF VIRGINIA MAY 9, 1995
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
(Thomas W. Roe, Jr.; Carter, Roe, Spigle & Roe, on
brief), for appellant. Appellant submitting on brief.
Eugene Murphy, Assistant Attorney General (James S.
Gilmore, III, Attorney General, on brief), for
appellee.
Robert Paul Hopson (Hopson) appeals his conviction for
driving under the influence pursuant to Code § 18.2-266. Hopson
asserts that the trial court erred in admitting the certificate
of analysis from his breathalyzer test on the ground that the
Commonwealth failed to comply with the requirement of Code
§ 18.2-268.2 that he be offered a choice between a blood and
breath test. Finding no error, we affirm.
Following his arrest, Hopson was informed of the terms of
the implied consent law and elected to take a breath test. Upon
arrival at the Botetourt County Sheriff's Office, the arresting
officer discovered that the breathalyzer was not functioning.
The officer informed Hopson that the blood test was also not
available in Botetourt County at that time because of the death
of the doctor who normally performed the blood test. The officer
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
then contacted the Roanoke County Sheriff's Office to confirm
that blood alcohol analysis could be performed there, and upon
being told that it could, transported Hopson to Roanoke County
where he was given a breathalyzer test.
Code § 18.2-268.2(B) provides that a motorist arrested for
driving under the influence of alcohol has a statutory right to
choose between a blood test and breath test if required to take
such a test pursuant to Code § 18.2-268.2(A). "Once the driver
has elected which test he prefers to take, '[he] has a right to
receive the benefits of [that] test.'" Sullivan v. Commonwealth,
17 Va. App. 376, 378, 437 S.E.2d 242, 243 (1993)(quoting Breeden
v. Commonwealth, 15 Va. App. 148, 150, 421 S.E.2d 674, 675
(1992)). "Failure to provide the requested test . . . deprives
the accused of a significant method of establishing his
innocence." Breeden, 15 Va. App. at 150, 421 S.E.2d at 676
(emphasis added).
Hopson asserts that he was informed of the implied consent
law and then "basically told" that the breath test was his only
option. His argument, however, focuses on events which occurred
after he elected to take the breath test. The trial court found,
as a matter of fact, that Hopson requested the breath test when
he was informed of the election requirement of the implied
consent law. That determination is supported by the record and
is therefore binding on appeal. Speight v. Commonwealth, 4 Va.
App. 83, 88, 354 S.E.2d 95, 98 (1987)(en banc).
Hopson's election of a breath test was made freely and it
-2-
was honored by the Commonwealth. Nothing in the record suggests
that he would not have been provided with a blood test had he
requested that method, rather than a breath test, at the time of
his initial election. Under these facts, the reasonableness of
the unavailability of either test in Botetourt County and the
subsequent administration of the breath test in Roanoke County
without a renewed offer of the blood test are not relevant to the
inquiry of whether the requirements of Code § 18.2-268.2 were
met. In short, the record here establishes that Hopson was given
the test he chose.
For these reasons, we affirm Hopson's conviction.
Affirmed.
-3-