                    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.
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
        1
      An exception, not applicable in this case, is a minor
traffic accident, without injury, which occurs during the
midnight shift.



                                     2
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
                                3
breath sample taken . . . . "
     2
      The 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.
     3
      Effective 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



                                     3
           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."




                                 4
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.



                                   5
 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.




     4
      This 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.




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