                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Alexandria, Virginia


DANFUL RAY HERRING
                                              OPINION BY
v.       Record No. 1785-97-3    CHIEF JUDGE JOHANNA L. FITZPATRICK
                                           DECEMBER 8, 1998
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
                      Porter R. Graves, Jr., Judge
             Walter F. Green, IV (Green & O'Donnell, on
             brief), for appellant.

             Eugene Murphy, Assistant Attorney General
             (Mark L. Earley, Attorney General, on brief),
             for appellee.



     Danful Ray Herring (appellant) was convicted of driving

under the influence, first offense, in violation of Code

§ 18.2-266. 1   The sole issue in this appeal is whether the breath

test was "unavailable" within the meaning of Code § 18.2-268.2(B)

when the breathalyzer at the local jail failed to function.    For

the following reasons, we affirm the DUI conviction.

                                  I.

     On November 21, 1996, Virginia State Game Warden D.W.

Herndon received a dispatch regarding a possible intoxicated

driver on Turner Run Road in George Washington National Forest.

When Herndon arrived at the specified location, he observed a

Ford pickup truck driven by appellant.    He followed the truck for
     1
      Appellant was also convicted of refusal to take a blood or
breath test in violation of Code § 18.2-268.2, which is not at
issue in this appeal.
approximately two to three miles and observed appellant stop at

an intersection, make a wide right turn, and force an oncoming

vehicle off the road.   Appellant was stopped and, after failing

two of four field sobriety tests, was arrested for driving under

the influence of alcohol.

      Herndon advised appellant of the implied consent law.

Appellant requested a breath test and was taken to the Rockingham

County Jail.   During the administration of the test, the

breathalyzer malfunctioned.   Appellant was offered a blood test,

which he refused.   Herndon took appellant before a magistrate who

again explained the implied consent law, and appellant again

refused.
      Evidence at trial established that the same model

breathalyzer machine was located at the Harrisonburg Police

Department (HPD), which was down the street from the Rockingham

County Jail.   However, Deputy Richard Getz, the breathalyzer

operator at the jail, stated he had never used the HPD

breathalyzer and it was not standard operating procedure to use

it.   Getz also testified he had never heard of any of the

Rockingham deputies going to the HPD to use that breathalyzer.

Instead, if the jail breathalyzer malfunctioned, the next step

was to administer a blood test.    A nurse was on duty at the jail

and ready to administer the blood test to appellant.

      At the conclusion of the Commonwealth's case, appellant

moved to strike the evidence, contending the Commonwealth failed



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to meet its burden to establish a valid reason for the

unavailability of the breath test requested by appellant.    The

trial court overruled appellant's motion and convicted him of

driving under the influence, first offense, in violation of Code

§ 18.2-266.

                                II.

     Code § 18.2-268.2(B) provides that any person arrested for

driving under the influence "shall submit to a breath test.   If

the breath test is unavailable . . . a blood test shall be

given."   Appellant concedes that the breathalyzer at the jail

malfunctioned; however, he argues that the breath test was still

"available" within the meaning of Code § 18.2-268.2(B) because

another breathalyzer was available at the HPD, which was located

within one block of the jail.   Appellant argues the Commonwealth

failed to make a "reasonable effort to comply with [the statute]"

by transporting him to the other police station and, therefore,

the charge should have been dismissed.   We disagree.
     The Commonwealth bears the burden of establishing that the

breath test appellant requested was unavailable.   Furthermore,

the Commonwealth must provide a reasonable explanation for its

unavailability.   See Breeden v. Commonwealth, 15 Va. App. 148,

151, 421 S.E.2d 674, 676 (1992); see also Mason v. Commonwealth,

15 Va. App. 583, 585, 425 S.E.2d 544, 545 (1993) (decided under

former version of Code § 18.2-268.2(B)).   In Breeden, the

defendant requested a blood test from a local hospital but was



                                -3-
told by officers that no one was available at the hospital to

administer the test.   No officers checked with the hospital to

determine whether such a test could be given.      We held the

Commonwealth failed to establish why the blood test was

unavailable within the meaning of the statute.

     Similarly, in Sullivan v. Commonwealth, 17 Va. App. 376, 473

S.E.2d 242 (1993), the defendant was told by officers that the

only test available to her was a breath test.       However, the

evidence established that a blood test was available twenty-four

hours each day at a local hospital down the street and that the

police used the hospital regularly for the drawing of blood.       We

held in that case the blood test was "available" within the

meaning of the statute and defendant was entitled to elect which

test would be performed.

     This case is distinguishable from both Breeden and Sullivan.

Unlike Breeden, Deputy Getz began to administer the breath test

requested by appellant and did not attempt to hinder appellant's

election of which test to employ.       Contrary to appellant's

argument that a breathalyzer was available at the HPD and that

his case is controlled by Sullivan, no evidence was presented
that the Rockingham jail officers used that machine on a regular

basis or on any prior occasion.

     We believe the instant case is controlled by Commonwealth v.

Gray, 248 Va. 633, 449 S.E.2d 807 (1994), decided subsequent to

both Breeden and Sullivan, in which the Supreme Court affirmed



                                  -4-
defendant's refusal conviction.    In that case, the sheriff's

department did not have a licensed breathalyzer operator on duty

at the time of defendant's arrest.      In reviewing the department's

procedures, the Court wrote:
          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 defendant's arrest.


Id. at 636, 449 S.E.2d at 809.    According to department

procedures in Gray, when no officer was on duty to administer a

breath test, a blood test was to be given.     The Court concluded

that the Commonwealth provided a reasonable explanation as to the

unavailability of the breath test.      See id. at 636-37, 449 S.E.2d

at 810; see also Mason, 15 Va. App. at 585, 425 S.E.2d at 545

(concluding that a blood test was "unavailable" where officer was

the only officer on duty and the nearest hospital was in a

neighboring jurisdiction).

     In the instant case, the officers attempted to provide

appellant with the breath test as requested.     When the machine

malfunctioned, it became unavailable within the meaning of the

statute.   The Commonwealth is not required to search the

surrounding areas for an otherwise available machine.     No

evidence was presented that a qualified operator was on duty at

the HPD or that the deputies from the jail were allowed to use

the machine at the police department.     Because the breath test



                                  -5-
could not be successfully completed, it was unavailable, and the

Commonwealth provided a reasonable explanation for its

unavailability.   See Walker v. City of Lynchburg, 22 Va. App.

197, 468 S.E.2d 164 (1996) (holding that a blood test was

unavailable when the laboratory technician was unable to draw

defendant's blood after three attempts).

     Accordingly, we affirm appellant's conviction.

                                                         Affirmed.




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