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v>ommonweaitn s Attorney reter Luke argued that blood tests are not available in Rappahannock due to the distance involved to any of the hospitals and the time involved in getting to them. “Blood alcohol levels curve over time, so it’s better to give the tests sooner before the level can curve downward,” Luke said. “Usually the people caught for DWI have been drinking somewhere and aren’t drinking while they drive, so time has already passed since they consumed alcohol.”
Luke argued that it would take an officer 25 to 30 minutes to transport a defendant to one of the hospitals from Rappahannock and then there would be an additional wait for the test to be set up and administered. Luke also presented an opinion by the Attorney General that a blood test is not available if the arrested person has to be transported 20 miles or more into another jurisdiction for the test, which would apply to the Keller case.
Judge Robertson, however, agreed with Thacher that the test was available and that Keller should have been taken to a hospital. “Since a blood test was deemed to be available by the judge and Keller had requested the test, Judge Robertson didn’t allow the introduction of Keller’s breathalizer test result into evidence,” Luke said. “Then there was no case against him because there was no other evidence of drunk driving, like erratic driving. He had been stopped for speeding.” Another factor in the judge’s decision was Keller’s low breathalizer test result.
Judge Robertson’s decision was the first time that a blood test had been deemed to be available in the county. A revision of the DWI law in the Virginia Code went into effect on July 1. “The law reads now that a defendant can elect to have either the blood or breathalizer test, but if one is not available, he or she has to take the one that is available,” Luke said.
Trooper Newlin said that State Troopers in Rappahannock would continue to take the position that blood tests are not available in the county unless the State Police Department changes its requirements. “It won’t affect how we handle DWI arrests because we’ll still give the breathalizer,”
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