Danful Ray Herring v. Commonwealth of Virginia

FITZPATRICK, Chief Judge.

Danful Ray Herring (appellant) was convicted of driving under the influence, first offense, in violation of Code § 18.2-266. 1 The sole issue in this appeal is whether the breath test was “unavailable” within the meaning of Code § 18.2-268.2(B) when the breathalyzer at the local jail failed to function. For the following reasons, we affirm the DUI conviction.

I

On November 21, 1996, Virginia State Game Warden D.W. Herndon received a dispatch regarding a possible intoxicated driver on Turner Run Road in George Washington National Forest. When Herndon arrived at the…