40 Va.App. 20, 24, 577 S.E.2d 514, 516 (2003) (“Test results from a breath or blood test are not necessary or required to prove driving under the influence of alcohol or drugs.”). The absence of the BAC test results would require dismissal only if the Commonwealth had prosecuted Cutright solely for violating subsection (i) of Code § 18.2-266, the “ ‘per se’ statute” predicating guilt on blood alcohol content alone. Kehl v. Commonwealth, 15 Va.App. 602, 605, 426 S.E.2d 127, 129 (1993). Dismissal of a subsection (ii) DUI charge may be appropriate in cases involving an outright failure of the Commonwealth to provide any independent testing of any kind despite a statutory requirement that it do so. See, e.g., Shoemaker v. Commonwealth, 18 Va.App. 61, 64, 441 S.E.2d 354, 356 (1994) (<HOLDING>); Kemp v. Commonwealth, 16 Va.App. 360, 365-66,
holding that in considering dismissal of an appeal the court should exercise discretion to determine whether dismissal is appropriate in the circumstances presented by the case holding that dismissal without prejudice was appropriate where a plaintiff failed to name each of the persons alleged to have violated the appropriate standard of care holding dismissal appropriate where commonwealth failed to take further action when sample was returned unopened and marked refused by lab selected by defendant holding that bankruptcy courts order was final where is was labeled as a final judgment and was clearly intended to serve as denial of relief sought the order determined the substantive rights at issue there was no indication in the record that the court intended to take further action and no party argued that any further action by the court was to occur holding that district court has no jurisdiction to take further action where there was no remand order