VA Code 18.2-268.2 Interpretation
It is not unusual for a trial judge to instruct jurors that they are the judges of the facts, the credibility of the witnesses, and the weight of the evidence.
The judge, as he is required to do from time to time, asked counsel on both sides for advice and guidance on the issue.
Such "brainstorming" by the trial court and counsel is an integral part of our judicial system.
Further, as previously stated, Code 18.2-268.2 was amended effective as of January 1, 1995, and no cases had been decided interpreting the statute at that time.
The trial judge and the attorneys did not have the benefit of Lamay, which was not decided until April 12, 1999, one year later.
In Lamay v. Commonwealth, 29 Va. App. 461, 475-76, 513 S.E.2d 411, 418 (1999) the Court said:
Appellant contends the trial court erred in refusing to allow testimony relating to the failure of the police to comply with the requirement that when a person is physically unable to submit to a breath test, a blood test shall be given.
We have not had an opportunity to construe fully the provisions of Code 18.2-268.2 since its effective revision date of January 1, 1995. Therefore, this case comes before us as one of first impression and requires us to analyze Code 18.2-268(B) in situations where at his or her DUI trial an accused DUI driver alleges physical inability to take a breath test. We must determine under the limited facts of this case, what evidence is admissible, the procedure to follow, and what remedy, if any, should issue. Lamay, 29 Va. App. at 467-68, 513 S.E.2d at 414-15.