Bennett v. Commonwealth

COLEMAN, Judge,

with whom BENTON and ELDER, JJ., join, dissenting, in part, and concurring, in part.

A panel of this Court reversed the defendant’s conviction for a second or subsequent offense of driving while intoxicated because the trial court erroneously ruled that the jury, rather than the trial judge, had to decide whether the defendant was “physically unable to submit to the breath test” and thereby entitled to a blood test as provided by Code § 18.2-268.2(B). See Bennett v. Commonwealth, 31 Va.App. 30, 520 S.E.2d 845 (1999). In support of its decision reversing the trial court, the…