Bennett v. Commonwealth

UPON A REHEARING EN BANC

COLE, Senior Judge.

Appellant, Allen Dale Bennett, appeals his conviction of operating a motor vehicle under the influence of alcohol with two prior convictions within ten years, in violation of Code § 18.2-266. He contends the trial court erred (1) in refusing to decide whether the Commonwealth complied with Code § 18.2-268.2, pertaining to the administration of a breath test to determine his blood alcohol content, and in ruling that this issue was a jury question; and (2) in refusing to allow him to introduce evidence from the district court testimony of an absent…