                                 CODE OF VIRGINIA

EVIDENCE (§ 46.2-341.26:10)

A. In any trial for a violation of &#xA7; 46.2-341.24, admission of the blood or
breath test results shall not limit the introduction of any other relevant
evidence bearing upon any question at issue before the court, and the court
shall, regardless of the results of the blood or breath tests, consider other
relevant admissible evidence of the condition of the accused. If the test
results indicate the presence of any drugs other than alcohol, the test results
shall be admissible except in a prosecution under clause (v) of subsection A of
&#xA7; 46.2-341.24, only if other competent evidence has been presented to
relate the presence of the drug or drugs to the impairment of the
accused&#8217;s ability to drive or operate any commercial motor vehicle safely.

B. The failure of an accused to permit a blood or breath sample to be taken to
determine the alcohol or drug content of his blood is not evidence and shall not
be subject to any comment by the Commonwealth at the trial of the case, except
in rebuttal or pursuant to subsection C; nor shall the fact that a blood or
breath test had been offered the accused be evidence or the subject of comment
by the Commonwealth, except in rebuttal or pursuant to subsection C.

C. Evidence of a finding against the defendant under &#xA7; 18.2-268.3 for his
unreasonable refusal to permit a blood or breath sample to be taken to determine
the alcohol or drug content of his blood shall be admissible into evidence, upon
the motion of the Commonwealth or the defendant, for the sole purpose of
explaining the absence at trial of a chemical test of such sample. When admitted
pursuant to this subsection such evidence shall not be considered evidence of
the accused&#8217;s guilt.

D. The court or jury trying the case involving a violation of clause (ii), (iii)
or (iv) of subsection A of &#xA7; 46.2-341.24 shall determine the innocence or
guilt of the defendant from all the evidence concerning his condition at the
time of the alleged offense.

HISTORY: 1992, c. 830; 2001, c. 654; 2005, c. 616.