COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Petty and Senior Judge Haley
PUBLISHED
Argued at Salem, Virginia
JEREMY DESHAWN FITZGERALD
OPINION BY
v. Record No. 0131-12-3 JUDGE WILLIAM G. PETTY
DECEMBER 11, 2012
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
Joseph W. Milam, Jr., Judge
Mark T. Williams (Williams, Morrison, Light & Moreau, on brief),
for appellant.
Alice T. Armstrong, Assistant Attorney General II (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Jeremy Deshawn Fitzgerald was convicted of driving a motor vehicle while intoxicated,
first offense, in violation of Code § 18.2-266. On appeal, Fitzgerald assigns several errors to the
trial court’s admission of two certificates into evidence at trial: the certificate of blood alcohol
analysis and a certificate of instrument accuracy. Fitzgerald’s first three assignments of error
challenge the trial court’s admission of the certificate of instrument accuracy on various grounds.
His fourth assignment of error challenges the trial court’s admission of the certificate of blood
alcohol analysis on the sole ground that if the certificate of instrument accuracy was improperly
admitted, then so was the certificate of blood alcohol analysis. For the reasons expressed below,
we conclude that the certificate of blood alcohol analysis was admissible regardless of any
alleged error in admitting the certificate of instrument accuracy and that, correspondingly, any
error in admitting the certificate of instrument accuracy was harmless. Accordingly, we affirm
the judgment of the trial court.
I. BACKGROUND
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987)).
On July 16, 2011, Lieutenant J.W. Smith saw Fitzgerald pull out in front of oncoming
traffic as Fitzgerald was driving a van. Fitzgerald barely missed hitting another vehicle, and
Lieutenant Smith pulled him over. When Lieutenant Smith walked up to the van, he smelled an
odor of alcohol and saw that Fitzgerald’s eyes were bloodshot. Fitzgerald admitted that he had
recently had a couple of shots of alcohol at a local bar. After administering three field sobriety
tests, Lieutenant Smith arrested Fitzgerald at 12:15 a.m. for driving under the influence.
Lieutenant Smith took Fitzgerald to the Danville City Jail, where Sergeant Casey Allen
conducted a breath test to determine Fitzgerald’s blood alcohol content.
At trial, the trial court admitted into evidence, over Fitzgerald’s objections, both a
certificate of instrument accuracy for the breath test equipment 1 and a certificate of blood alcohol
analysis showing the results of the breath test. The certificate of blood alcohol analysis indicated
that Fitzgerald’s blood alcohol content was 0.16 at 1:14 a.m. on July 16, 2011. The certificate
also contained the following attestation, signed by Sergeant Allen:
1
In addition to containing the certification date of the equipment, the certificate of
instrument accuracy also contained the following certification: “The above listed instrument was
found to meet all requirements for accuracy and performance established by the Department of
Forensic Science. This certification is valid from the above listed certification date until the
above listed date for recertification.”
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I certify that the above is an accurate record of the test
conducted; that the test was conducted with the type of equipment
and in accordance with the methods approved by the Department
of Forensic Science; that the test was conducted in accordance with
the Department’s specifications; that prior to administration of the
test the accused was advised of his right to observe the process and
see the blood alcohol reading on the equipment used to perform the
breath test, and that I possess a valid license to conduct such test,
given under my hand this 16th day of July, 2011.
The trial court convicted Fitzgerald of driving a motor vehicle while intoxicated, first
offense. This appeal followed.
II. ANALYSIS
This appeal presents us with a question of statutory construction. Fitzgerald argues that
Code § 18.2-268.9 requires the Commonwealth to introduce evidence affirmatively showing that
the equipment used to conduct a defendant’s breath test was maintained by the Department of
Forensic Science (the “Department”) and that the Commonwealth’s failure to properly introduce
such evidence renders the breath test results inadmissible. We disagree.
“‘The admissibility of evidence is within the broad discretion of the trial court, and a
ruling will not be disturbed on appeal in the absence of an abuse of discretion.’” Bynum v.
Commonwealth, 57 Va. App. 487, 490, 704 S.E.2d 131, 133 (2011) (quoting Gonzales v.
Commonwealth, 45 Va. App. 375, 380, 611 S.E.2d 616, 618 (2005) (en banc)). Of course, “[a]n
error of law by the trial court is ipso facto an abuse of its discretion.” Id.
“‘Statutory construction is a question of law which we review de novo on appeal.’”
Lynchburg Div. of Soc. Servs. v. Cook, 276 Va. 465, 480, 666 S.E.2d 361, 368 (2008) (quoting
Parker v. Warren, 273 Va. 20, 23, 639 S.E.2d 179, 181 (2007)). In accordance with
well-established principles, we will “‘apply the plain language of a statute unless the terms are
ambiguous.’” Id. (quoting Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 926 (2006)).
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“‘[T]he primary objective of statutory construction is to ascertain and give effect to legislative
intent.’” Commonwealth v. Amerson, 281 Va. 414, 418, 706 S.E.2d 879, 882 (2011) (alteration
in original) (quoting Conger v. Barrett, 280 Va. 627, 630, 702 S.E.2d 117, 118 (2010)); see also
B.P. v. Commonwealth, 38 Va. App. 735, 739, 568 S.E.2d 412, 413 (2002) (“We will not place a
construction upon a statute which leads to an absurd result or one plainly contrary to the
expressed intent of the General Assembly . . . .”). Indeed,
“[i]n the construction of statutes, the courts have but one object, to
which all rules of construction are subservient, and that is to
ascertain the will of the legislature, the true intent and meaning of
the statute, which are to be gathered by giving to all the words used
their plain meaning, and construing all statutes in pari materia in
such manner as to reconcile, if possible, any discordant feature
which may exist, and make the body of the laws harmonious and
just in their operation.”
Thomas v. Commonwealth, 59 Va. App. 496, 500, 720 S.E.2d 157, 159-60 (2012) (alteration in
original) (quoting Lucy v. Cnty. of Albemarle, 258 Va. 118, 129-30, 516 S.E.2d 480, 485
(1999)). Furthermore, “‘[w]e . . . presume that the legislature chose, with care, the words it used
when it enacted the relevant statute.’” Seabolt v. Cnty. of Albemarle, 283 Va. 717, 720, 724
S.E.2d 715, 717 (2012) (alteration in original) (quoting Addison v. Jurgelsky, 281 Va. 205, 208,
704 S.E.2d 402, 404 (2011)).
Regarding the admissibility of a certificate of blood alcohol analysis following a breath
test, Code § 18.2-268.9(B) provides, in pertinent part:
Any individual conducting a breath test under the provisions of
§ 18.2-268.2 shall issue a certificate which will indicate that the
test was conducted in accordance with the Department’s
specifications, the name of the accused, that prior to administration
of the test the accused was advised of his right to observe the
process and see the blood alcohol reading on the equipment used to
perform the breath test, the date and time the sample was taken
from the accused, the sample’s alcohol content, and the name of
the person who examined the sample. This certificate, when
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attested by the individual conducting the breath test on equipment
maintained by the Department, shall be admissible in any court as
evidence of the facts therein stated and of the results of such
analysis (i) in any criminal proceeding, provided that the
requirements of subsection A of § 19.2-187.1 have been satisfied
and the accused has not objected to the admission of the certificate
pursuant to subsection B of § 19.2-187.1, or (ii) in any civil
proceeding. Any such certificate of analysis purporting to be
signed by a person authorized by the Department shall be
admissible in evidence without proof of seal or signature of the
person whose name is signed to it.
The purpose of this language is to specify the foundation the Commonwealth must lay to
introduce into evidence what would otherwise be considered hearsay—a certificate of blood
alcohol analysis following a breath test. 2 The statute expressly lists all the facts the certificate
must indicate to render the certificate admissible. The statute plainly states that a certificate
“shall be admissible” when properly attested by the person who conducted the breath test. Id.
This indicates that the intent of the General Assembly in employing this language was to require
the Commonwealth to introduce evidence showing—by way of a formal attestation—that certain
requirements regarding the conducting of the breath test were met. Concomitantly, it also
indicates that these are the only facts the Commonwealth must prove to establish the certificate’s
admissibility. Indeed, as the Supreme Court has previously observed, “[w]hen the certificate
contains what the statute requires, the statute makes the certificate self-authenticating for
purposes of admissibility.” Stroupe v. Commonwealth, 215 Va. 243, 245, 207 S.E.2d 894, 896
(1974).
Prior to the 2009 amendment, the list of requirements in Code § 18.2-268.9 that the
certificate had to indicate included the fact that “the equipment on which the breath test was
2
Code § 18.2-268.9(A) sets forth the foundation the Commonwealth must establish for
the results of a breath test to be “considered valid as evidence,” or in other words, the foundation
for the admissibility of the actual test results. Fitzgerald does not argue that these foundational
requirements were not met.
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conducted has been tested within the past six months and has been found to be accurate.”
However, in 2009, the General Assembly removed this requirement from the list of facts the
certificate had to indicate to be admissible. The General Assembly simultaneously added the
current phrase, “on equipment maintained by the Department,” to the following sentence in the
statute dictating the admissibility of a certificate that is properly attested. Fitzgerald argues that
the amended language still requires the Commonwealth to introduce affirmative evidence
showing that the breath test was conducted on equipment maintained by the Department.
However, we hold that the amendment to the statute, considered as a whole, indicates the
opposite intent by the General Assembly.
“‘[W]hen a statute has been amended, there is a presumption that the General Assembly
intended to effect a substantive change in the law.’” Thomas, 59 Va. App. at 503, 720 S.E.2d at
161 (quoting Britt Constr., Inc. v. Magazzine Clean, LLC, 271 Va. 58, 63, 623 S.E.2d 886, 888
(2006)); see also Scott v. Commonwealth, 58 Va. App. 35, 49, 707 S.E.2d 17, 24 (2011) (noting
that “when the legislature amends a particular statute, we normally presume that ‘a change in law
was intended’” (quoting Wisniewski v. Johnson, 223 Va. 141, 144, 286 S.E.2d 223, 225
(1982))). “Accordingly, we must ‘assume that a statutory amendment is purposeful, rather than
unnecessary.’” Thomas, 59 Va. App. at 503, 720 S.E.2d at 161 (quoting Britt Constr., Inc., 271
Va. at 63, 623 S.E.2d at 888).
The elimination of the express requirement that the certificate indicate that the breath test
equipment has been tested and found accurate within the past six months demonstrates the
General Assembly’s intent no longer to require the Commonwealth to introduce evidence
regarding the maintenance of breath test equipment in order to admit a certificate of analysis into
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evidence. The addition of the phrase “on equipment maintained by the Department” in another
sentence in the statute does not negate this intent.
The provisions of Code § 18.2-268.11 are relevant at this point. That section provides:
The steps set forth in §§ 18.2-268.2 through 18.2-268.9
relating to taking, handling, identifying, and disposing of blood or
breath samples are procedural and not substantive. Substantial
compliance shall be sufficient. Failure to comply with any steps or
portions thereof shall not of itself be grounds for finding the
defendant not guilty, but shall go to the weight of the evidence and
shall be considered with all the evidence in the case; however, the
defendant shall have the right to introduce evidence on his own
behalf to show noncompliance with the aforesaid procedures or
any part thereof, and that as a result his rights were prejudiced.
Code § 18.2-268.11.
The language in Code § 18.2-268.9 regarding “equipment maintained by the Department”
does not constitute a requirement that the Commonwealth must affirmatively prove to render a
certificate admissible as evidence. Rather, it is a procedural circumstance for which a defendant
may introduce evidence to show noncompliance that has resulted in prejudice to his rights. In
other words, under the statutory scheme, a certificate is admissible into evidence without an
affirmative showing by the Commonwealth that the breath test equipment was properly
maintained by the Department. However, a defendant is free to introduce evidence showing that
the breath test equipment was not properly maintained by the Department and that this
noncompliance with proper procedure resulted in prejudice to his rights. The failure of the
Commonwealth to comply with proper maintenance requirements for breath test equipment does
not render certificates of blood alcohol analysis inadmissible. Instead, such failure “go[es] to the
weight of the evidence and shall be considered with all the evidence in the case.” Code
§ 18.2-268.11; see Cutright v. Commonwealth, 43 Va. App. 593, 600-01, 601 S.E.2d 1, 4 (2004)
(noting that “[b]y statute, . . . the legislative remedy for a procedural violation is not suppression
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of the evidence, but a full and fair opportunity for both sides to attempt to prove or disprove any
prejudicial effect of the violation”). 3
We are guided in our analysis by the Supreme Court’s decision in Stroupe, 215 Va. 243,
207 S.E.2d 894. In Stroupe, the defendant argued that the Commonwealth had not introduced
affirmative evidence proving compliance with all the various statutory requirements for breath
tests and certificates of analysis. Id. at 244-45, 207 S.E.2d at 895-96. Noting that the certificate
in that case “contained every averment, datum, signature, and attestation specifically required by
the statute,” id. at 244-45, 207 S.E.2d at 896, the Supreme Court held that “[w]hen the certificate
contains what the statute requires, the statute makes the certificate self-authenticating for
purposes of admissibility,” id. at 245, 207 S.E.2d at 896. The Court proceeded to explain:
Once the certificate is admitted, the statute makes it evidence of
the alcoholic content of the blood to be considered with all other
evidence in the case. But the statute does not make the certificate
conclusive evidence of the statutory regularity of the test. With
respect to regularity of the test, the statute affords the defendant the
right to prove noncompliance with test procedures. . . . Even had
[the defendant] . . . proved some prejudicial irregularity in test
procedures, such proof would not have defeated admissibility of
the certificate but only affected its weight as evidence of the
alcoholic content of his blood.
Id.; see also Woolridge v. Commonwealth, 29 Va. App. 339, 345, 512 S.E.2d 153, 156 (1999)
(noting that when a “certificate complie[s] with all the requirements contained in Code
§ 18.2-268.9, . . . the burden [is] on appellant to prove a substantive, rather than merely
procedural, irregularity sufficient to defeat the certificate’s admissibility”). This is essentially
the reasoning we have set forth above in response to Fitzgerald’s argument. “Simply put, the
3
In ruling on the issue before us regarding foundation for admissibility, we express no
opinion on the separate issue that could arise in subsequent cases, viz., a challenge to the
sufficiency of the evidence where a defendant has actually introduced evidence of
noncompliance with procedural requirements resulting in prejudice to his rights.
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statute does not require proof of the accuracy of an individual test as a prerequisite to
admissibility of the resulting certificate.” Woolridge, 29 Va. App. at 345, 512 S.E.2d at 156.
Furthermore, the Court in Stroupe noted that “[t]here was evidence on the face of the
certificate that the test was performed by [a licensed] operator.” 215 Va. at 244, 207 S.E.2d at
896. The Court held that this “evidence raise[d] the reasonable inference that such operator was
trained with a [properly approved] machine . . . , in [properly approved] methods . . . , and that
the same machine and methods were used to conduct the test administered to defendant.” Id.
Similarly, the certificate in this case contains an attestation “that the test was conducted with the
type of equipment and in accordance with the methods approved by the Department of Forensic
Science.” This evidence permits the reasonable inference that the equipment was maintained by
the Department. Indeed, Fitzgerald introduced no evidence indicating that the equipment had not
been properly maintained by the Department.
It is true that Code § 9.1-1101 requires the Department to “[t]est the accuracy of
equipment used to test the blood alcohol content of breath at least once every six months,” and
mandates that “[o]nly equipment found to be accurate shall be used to test the blood alcohol
content of breath.” Code § 9.1-1101(B)(3). However, a plain reading of Code § 18.2-268.9
indicates that the Commonwealth is not required to introduce affirmative evidence showing the
Department’s compliance with Code § 9.1-1101(B)(3) before a certificate of blood alcohol
analysis becomes admissible. Rather, the substantial compliance provisions of Code
§ 18.2-268.11 explained above indicate that the defendant has the burden of producing evidence
showing noncompliance with procedural requirements like that contained in Code
§ 9.1-1101(B)(3). This is consistent with the general principle that “[t]here is a presumption that
public officials will perform their duties in accordance with the law.” Bd. of Supervisors v.
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Safeco Ins. Co. of Am., 226 Va. 329, 338, 310 S.E.2d 445, 450 (1983); see also Mar v.
Malveaux, 60 Va. App. 759, 772, 732 S.E.2d 733, 739 (2012) (“[I]t is ‘presumed that public
officials will discharge their duties honestly and in accordance with law.’” (quoting Ours
Properties, Inc. v. Ley, 198 Va. 848, 851, 96 S.E.2d 754, 756 (1957))). Thus, for purposes of
admitting a certificate of analysis into evidence under Code § 18.2-268.9, the Department’s
compliance with requirements like that prescribed in Code § 9.1-1101(B)(3) is presumed, but the
defendant has the right to introduce evidence showing noncompliance by the Department that
prejudiced the defendant’s rights.
Fitzgerald cites Brooks v. City of Newport News, 224 Va. 311, 295 S.E.2d 801 (1982), to
support his argument. In Brooks, the certificate of analysis showed on its face that the breath test
operator’s license had expired several weeks before he conducted the defendant’s breath test. Id.
at 313-14, 295 S.E.2d at 802-03. The Supreme Court noted that although “the statute does not
require the expiration date of the license to be recorded on the certificate of analysis,” the fact
that it was recorded revealed “a patent inconsistency with [the operator’s] certification that he
possessed a valid license.” Id. at 314, 295 S.E.2d at 803. Here, however, there was no evidence
demonstrating noncompliance with the requirements of the statute. Thus, Brooks does not apply
to the facts of this case.
“The burden is on the Commonwealth to show that it substantially complied with the
requirements of the statute.” Snider v. Commonwealth, 26 Va. App. 729, 732, 496 S.E.2d 665,
666 (1998). “When the certificate contains what the statute requires, the statute makes the
certificate self-authenticating for purposes of admissibility.” Stroupe, 215 Va. at 245, 207
S.E.2d at 896. The record here demonstrates that the certificate of analysis contained what Code
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§ 18.2-268.9 requires. Therefore, we hold that the trial court did not commit an error of law and
thereby abuse its discretion in admitting the certificate into evidence.
Furthermore, our analysis regarding the admissibility of the certificate of blood alcohol
analysis is unaffected by the question of whether it was error to admit the certificate of
instrument accuracy into evidence. Assuming without deciding that the trial court erred in
admitting the certificate of instrument accuracy, we hold that because proof of the facts in the
certificate of instrument accuracy was not a prerequisite to the admissibility of the certificate of
blood alcohol analysis, the trial court did not err in admitting the certificate of blood alcohol
analysis and the breath test results it contained. In light of this holding, we also hold that any
error in admitting the certificate of instrument accuracy was harmless on the facts of this case.
See Atkins v. Commonwealth, 272 Va. 144, 154, 631 S.E.2d 93, 98 (2006) (discussing standard
for non-constitutional harmless error); Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d
208, 209 (1999) (discussing standard for constitutional harmless error). 4
III. CONCLUSION
For the foregoing reasons, we affirm Fitzgerald’s conviction.
Affirmed.
4
Fitzgerald alleged both constitutional and non-constitutional errors in the admission of
the certificate of instrument accuracy. We believe that any error in admitting the certificate of
instrument accuracy was harmless under either standard.
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