Commonwealth v. Gray

The sole issue in this appeal is whether the trial court erred in dismissing a charge of unreasonable refusal to submit to a breath or blood test, Code §§ 18.2-268.2 to -268.4, based on its finding that the Commonwealth failed to establish that the breath test was unavailable at the time of the defendant’s arrest.

At 1:26 a.m. on February 28, 1993, Lewis Boyce Gray was arrested by Corporal B.S. Rogers of the Fauquier County Sheriff’s Office and was charged with “driving under the influence.” Code § 18.2-266. After Rogers advised Gray of Code § 18.2-268.2, Virginia’s “implied consent law,” Gray…