Grant v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Frank and Petty
Argued at Richmond, Virginia

PHILLIP LAWTON GRANT
OPINION BY
v. Record No. 0877-08-4 JUDGE WILLIAM G. PETTY
SEPTEMBER 1, 2009
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Bruce D. White, Judge

Patrick M. Blanch, Assistant Public Defender (Office of the Public
Defender, on briefs), for appellant.

Benjamin H. Katz, Assistant Attorney General (Robert F.
McDonnell, Attorney General; William C. Mims, Attorney General,
on briefs), for appellee.

Appellant, Phillip Lawton Grant, challenges his conviction for driving while intoxicated, in

violation of Code § 18.2-266. Grant argues that his conviction should be reversed because the

certificate of the results of a chemical analysis of his breath indicating his blood alcohol level was

admitted into evidence in violation of his Sixth Amendment right to confront witnesses against

him. 1 For the reasons explained below, we agree with Grant and reverse his conviction.

1
Grant’s question presented on appeal is:

Whether the trial court erred by denying appellant’s motion to
exclude from evidence, or alternatively to strike from evidence, the
certificate of analysis because the Commonwealth failed to comply
with appellant’s timely “Notice of Defendant’s Exercise of
Confrontation Rights Pursuant to Va. Code 19.2-187.1.”

While both parties argued that the statutes governing the admissibility of the breath test
certificate are Code §§ 19.2-187 and 19.2-187.1, the express statutory authority for the admission
of a breath test certificate is set out in Code § 18.2-268.9. Code § 19.2-187 is limited to
certificates of analysis prepared by the Division of Consolidated Laboratory Services, the
 I. Background

Pursuant to Rule 5A:8(c), the parties presented an agreed statement of facts, in lieu of a

transcript, of the trial court proceedings. We draw this summary of the facts and incidents of

trial from that statement. In accord with our usual standard of review, we view the evidence and

all reasonable inferences flowing from the evidence in a light most favorable to the

Commonwealth as the party prevailing in the trial court. Garcia v. Commonwealth, 40 Va. App.

184, 189, 578 S.E.2d 97, 99 (2003).

On June 30, 2007, Grant was involved in a minor traffic accident. Approximately five

minutes after the accident, Officer Wolfe arrived to investigate. Officer Wolfe testified at trial

that he noticed the odor of alcohol on Grant’s breath as they interacted and that Grant’s eyes

were bloodshot. Grant admitted to Officer Wolfe that he had consumed “a couple of beers” over

an hour earlier. Officer Wolfe then asked Grant to perform some field sobriety tests, which

Grant agreed to do. Grant successfully performed the “one-legged stand,” although he did

become confused when counting the number of seconds he stood on one leg, and performed the

“walk-and-turn test,” staggering once. Grant also had some difficulty in reciting the alphabet.

At that point, Officer Wolfe asked Grant to take a preliminary breath test. Grant refused to do

so.

Based upon these circumstances, Officer Wolfe arrested Grant for driving while

intoxicated. The officer took Grant to the Fairfax County Adult Detention Center (“ADC”).

After arriving at the ADC, the officer read Grant the implied consent statute, and Grant agreed to

Department of Forensic Science, and certain other enumerated laboratories. Further, Code
§ 19.2-187.1 only provides for a right by the defendant to examine persons performing analysis
pursuant to Code § 19.2-187. It does not appear that the Fairfax County Adult Detention Center
is one of the laboratories enumerated in Code § 19.2-187. However, whether the parties and the
trial court relied upon the correct statutory scheme addressing the admissibility of the breath test
certificate is not before us in this appeal. Therefore, we assume without deciding for the
purposes of this opinion that Code § 19.2-187.1 is applicable to this case.
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provide a sample of his breath in order to determine his blood alcohol concentration (“BAC”) by

blowing into the Intoxilyzer 5000 machine located at the ADC. According to the certificate of

blood alcohol analysis (“certificate”), Grant’s BAC at the time of the test was 0.11 grams per 210

liters of breath.

Over two months prior to his circuit court trial, Grant filed a “Notice of Defendant’s

Exercise of Confrontation Rights Pursuant to Va. Code § 19.2-187.1.” The notice stated the

following:

The Defendant, Mr. Grant, pursuant to Virginia Code 19.2-187.1,
the 6th and 14th Amendments to the United States Constitution,
Article I § 8 of the Virginia Constitution, Davis v. Washington,
126 U.S. 2266 (2006), and Brooks v. Commonwealth, 49 Va. App.
155 (2006), hereby notifies the Commonwealth of Virginia that he
does not stipulate to the admissibility of the contents of any
properly filed certificates of analysis in this case. Mr. Grant
further notifies the Commonwealth that he desires that the preparer
of the certificate, including persons having personal knowledge of
information attested to in the certificate, be summoned by the
Commonwealth to appear at trial . . . at the cost of the
Commonwealth to be cross-examined in this matter.

(Emphasis added).

The Commonwealth did not call the breath test operator as a witness at trial. Instead, it

relied on the testimony of Officer Wolfe. He testified that he observed Grant for the required

twenty-minute time period and that Grant “then blew into the Intoxilyzer 5000 machine. The

machine determined that [Grant’s] blood alcohol concentration . . . was 0.11.” The

Commonwealth then offered the certificate into evidence. Grant objected, arguing that the

certificate should be excluded because the Commonwealth did not summon the person who

prepared the certificate to be cross-examined at trial. The trial court overruled Grant’s objection

and ruled that the certificate was admissible. The trial court held that under Code § 19.2-187.1

the defense must subpoena the breath test operator, even though the statute provides that the cost

of bringing the witness be paid by the Commonwealth. Thus, the trial court concluded that Grant
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had not complied with Code § 19.2-187.1 because he had not subpoenaed the breath test operator

to testify to the contents of the certificate.

The trial court found Grant guilty of driving while intoxicated, and this appeal followed.

During the pendency of this appeal, the United States Supreme Court decided Melendez-Diaz v.

Massachusetts, 129 S. Ct. 2527 (2009), holding that certificates of analysis are testimonial

statements, and, “[a]bsent a showing that the analysts were unavailable to testify at trial and that

petitioner had a prior opportunity to cross-examine them, petitioner was entitled to ‘be confronted

with’ the analysts at trial.” Id. at 2532 (quoting Crawford v. Washington, 541 U.S. 36, 54 (2004)).

After the Court released its opinion, we ordered the parties to submit supplemental briefs addressing

the effect of the Melendez-Diaz decision on this case.

II. Analysis

A. Admissibility of the Certificate of Analysis 2

The Commonwealth conceded in its supplemental brief that the contents of the attestation

clause 3 contained in the certificate are testimonial in nature, based upon the United States

2
Grant acknowledges that this Court has held that the results of a breath test as recorded
in a certificate of analysis are not testimonial hearsay because the Intoxilyzer 5000 machine is
not a witness. See Wimbish v. Commonwealth, 51 Va. App. 474, 482-84, 658 S.E.2d 715,
719-20 (2008). Instead, Grant argues that the contents of the attestation clause on the certificate
of analysis are testimonial and subject to confrontation. He reasons that in the absence of the
confrontation, the certificate of analysis itself is inadmissible.
3
The attestation clause states, in pertinent part:

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’s
specifications; that the equipment on which the breath test was
conducted has been tested within the past six months and found to
be accurate; 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 . . . .

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Supreme Court’s decision in Melendez-Diaz. The Commonwealth also conceded that Grant’s

notice pursuant to Code § 19.2-187.1 complied with the requirements of that statute as it was

construed in Magruder v. Commonwealth, 275 Va. 283, 657 S.E.2d 113 (2008), cert. granted sub

nom. Briscoe v. Virginia, 129 S. Ct. 2858 (2009). While we are not obliged to accept the

Commonwealth’s concession of legal error, see Copeland v. Commonwealth, 52 Va. App. 529,

531, 664 S.E.2d 528, 529 (2008), we agree with the Commonwealth in this case: the attestation

clause is testimonial under the holding of Melendez-Diaz, 4 and Grant complied with the

requirements of Code § 19.2-187.1.

Melendez-Diaz is the latest in the Supreme Court’s recent line of cases regarding the

right of a criminal defendant to confront the witnesses against him, as guaranteed by the Sixth

and Fourteenth Amendments of the United States Constitution. 129 S. Ct. at 2531-32. In

Melendez-Diaz, the Court held that the contents of the certificates of analysis at issue were

testimonial in nature in accordance with its earlier decision in Crawford, 541 U.S. at 36. Id. at

2532. Thus, the analysts whose conclusions were memorialized in the certificates were

“‘witnesses’ for the purposes of the Sixth Amendment. Absent a showing that the analysts were

unavailable to testify at trial and that the [defendant] had a prior opportunity to cross-examine

them, [the defendant] was entitled to ‘be confronted with’ the analysts at trial.” Id. (quoting

Crawford, 541 U.S. at 54) (emphasis in original).

The certificates of analysis at issue in Melendez-Diaz recited the results of a laboratory

analysis of material that the laboratory concluded was cocaine. 129 S. Ct. at 2531. These

certificates “were sworn to before a notary public by analysts at the State Laboratory Institute of

4
We note that this case is very different from Wimbish, 51 Va. App. 474, 658 S.E.2d
715, where we rejected a Crawford challenge to the admission of, inter alia, the attestation
clause on a certificate of analysis. In Wimbish the person who prepared the breath test
certificate, including the attestation clause, testified and was subject to cross-examination by the
defendant.
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the Massachusetts Department of Public Health, as required under Massachusetts law.” Id.

(citation omitted). The Supreme Court concluded that “the documents at issue in this case fall

within the ‘core class of testimonial statements’ . . . . The documents at issue here, while

denominated by Massachusetts law ‘certificates,’ are quite plainly affidavits: ‘declaration[s] of

facts written down and sworn to by the declarant before an officer authorized to administer

oaths.’” Id. at 2532 (quoting Crawford, 541 U.S. at 51; Black’s Law Dictionary 62 (8th ed.

2004)). The Court went on to explain that the certificates existed to prove that “the substance

found in the possession of Melendez-Diaz . . . was, as the prosecution claimed, cocaine—the

precise testimony the analysts would be expected to provide if called at trial.” Id. Thus, the

Supreme Court reasoned, “[t]he ‘certificates’ are functionally identical to live, in-court

testimony, doing ‘precisely what a witness does on direct examination.’” Id. (quoting Davis v.

Washington, 547 U.S. 813, 830 (2006)).

Virginia law does not require that certificates of blood alcohol analysis be sworn to

before a notary public. The law does, however, require that the preparer of the certificate

memorializing the results of a chemical analysis of a person’s breath for the purposes of

prosecution under Code § 18.2-266 sign an attestation clause confirming the accuracy of the test

and that the test was conducted pursuant to the regulations of the Department of Forensic

Science. Code § 18.2-268.9. Grant argues that this attestation clause is testimonial and that the

trial court’s failure to subject the preparer of the clause to cross-examination rendered the

certificate inadmissible.

The first paragraph of Code § 18.2-268.9—the statute that governs the use of breath-test

results as evidence in criminal trials—sets forth factual predicates that must be met before

breath-test results are “capable of being considered valid as evidence in a criminal trial.” The

statute requires that:

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 [The] chemical analysis of a person’s breath shall be performed by
an individual possessing a valid license to conduct such tests, with
a type of equipment and in accordance with methods approved by
the Department [of Forensic Science]. The Department shall test
the accuracy of the breath-testing equipment at least once every six
months.

The second paragraph of Code § 18.2-268.9 then goes on to require that the individual

who prepares the certificate attest to his or her fulfillment of the prerequisites set forth in the first

paragraph of the statute:

Any individual conducting a breath test . . . shall issue a certificate
which will indicate that the test was conducted in accordance with
the Department’s specifications, the equipment on which the
breath test was conducted has been tested within the past six
months and has been found to be accurate, 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 attested by the
individual conducting the breath test, shall be admissible in any
court in any criminal or civil proceeding as evidence of the facts
therein stated and of the results of such analysis.

(Emphasis added). It is clear from the plain language of the statute that the General Assembly

intended that the certificates be self-proving. The word “attest” means: “To bear witness;

testify; to affirm to be true or genuine; to authenticate by signing as a witness.” Black’s Law

Dictionary 147 (9th ed. 2009) (emphasis added). Moreover, Code § 18.2-268.9 provides that the

evidence proving the statutory predicates governing both the reliability (first paragraph) and

admissibility (second paragraph) of the facts contained in the certificate is provided in the

attestation clause of the certificate, thus eliminating the need for the live, in-court testimony of a

breath-test operator. Thus, the attestation clause on the certificate of analysis in this case was

designed to be used exactly like the certificate at issue in Melendez-Diaz—to prove facts

essential to the prosecution that would otherwise have to be proved by live, in-court testimony:

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that the breath test was administered by a licensed operator in accordance with Code

§ 18.2-268.9.

However, the United States Supreme Court’s recent decision in Melendez-Diaz

invalidates this method of introducing evidence. Although the Court clarified that it did “not

hold, and it is not the case, that anyone whose testimony may be relevant in establishing . . .

the . . . accuracy of the testing device, must appear in person as part of the prosecution’s

case . . . [,] what testimony is introduced must (if the defendant objects) be introduced live.” 129

S. Ct. at 2532 n.1 (emphasis in original). Thus, while there is no constitutional requirement that

the factual predicates in Code § 18.2-268.9 be established prior to the admission of the results of

the test, once the General Assembly conditions the validity and admissibility of the breath-test

results on the proof of those facts, the Commonwealth must prove those facts through live,

in-court testimony and not by affidavit. Accordingly, we hold that the attestation clause included

in the certificate is testimonial in nature and its admission, over the objection of Grant,

constitutes a violation of the Confrontation Clause.

We also agree with the Commonwealth that Grant complied with the requirements of

Code § 19.2-187.1 and did not waive his right to confront the person who prepared the

certificate. In Magruder, our Supreme Court clarified that a criminal defendant could “insur[e]

the physical presence of the forensic analysts at trial” under Code § 19.2-187.1 “by issuing

summons for their appearance at the Commonwealth’s cost, or asking the trial court or

Commonwealth to do so.” Magruder, 275 Va. at 298, 657 S.E.2d at 120-21 (emphasis added).

Here, Grant notified the Commonwealth “that he desire[d] that the preparer of the certificate . . .

be summoned by the Commonwealth to appear at trial . . . at the cost of the Commonwealth to be

cross-examined in this matter.” (Emphasis added). Grant did what our Supreme Court

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instructed in Magruder, and, accordingly preserved his right to confront the preparer of the

certificate.

B. Harmless Error

The Commonwealth argues, however, that even if the trial court erred in admitting the

certificate, that error was harmless because there was sufficient evidence produced below to

prove that Grant was guilty of driving while intoxicated. We disagree.

The standard for constitutional harmless error is well settled. “‘When a federal

constitutional error is involved, a reversal is required unless the reviewing court determines that

the error is harmless beyond a reasonable doubt.’” Pitt v. Commonwealth, 260 Va. 692, 695,

539 S.E.2d 77, 78 (2000) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). In order to

determine whether the error was harmless beyond a reasonable doubt, we must ask “‘whether

there is a reasonable possibility that the evidence complained of might have contributed to the

conviction.’” Id. (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963)) (emphasis in

original). Finally, “the original common-law harmless error rule [places] the burden on the

beneficiary of the error either to prove or disprove that there was no injury or to suffer a reversal

of his erroneously obtained judgment.” Chapman, 386 U.S. at 24; see also Lugar v.

Commonwealth, 214 Va. 609, 630-31, 202 S.E.2d 894, 910 (1974) (Poff, J., concurring)

(“[W]hen . . . on appeal, the Commonwealth argues [that evidence admitted in violation of a

constitutional right was] ‘harmless error,’ the burden is on the Commonwealth to convince us

beyond a reasonable doubt that the erroneous admission of evidence was harmless.”).

According to the misdemeanor warrant in this case, Grant was charged with driving or

operating a motor vehicle while having a blood alcohol concentration of 0.08 grams or more per

210 liters of breath, or while under the influence of alcohol. See Code § 18.2-266. Accordingly,

the Commonwealth could prove the charges against Grant by (i) showing that he had the

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requisite blood alcohol level, or (ii) by presenting other evidence, including evidence of his

blood alcohol level, which would establish that he was driving under the influence of alcohol.5

According to the statement of facts, the Commonwealth relied on all of the circumstances of the

case in its closing argument, including the 0.11 blood alcohol concentration.

As discussed above, the attestation clause on the certificate showing a blood alcohol level

of 0.11 grams per 210 liters of breath was erroneously admitted in this case. Accordingly, we

must determine the importance of this error in light of the rest of the Commonwealth’s case. In

making this determination, we “must consider, among other factors, ‘the importance of the

tainted evidence in the prosecution’s case, whether that evidence was cumulative, the presence or

absence of evidence corroborating or contradicting the tainted evidence on material points, and

the overall strength of the prosecution’s case.’” Zektaw v. Commonwealth, 278 Va. 127, 140,

677 S.E.2d 49, ___ (2009) (quoting Pitt, 260 Va. at 695, 539 S.E.2d at 78).

1. Officer Wolfe’s Testimony as to the Contents of the Certificate

The Commonwealth contends the erroneous admission of the certificate constitutes

harmless error. It reasons that Officer Wolfe’s testimony that the result of the Intoxilyzer 5000

breath test, which he witnessed, but did not administer, was “0.11” is sufficient to support

Grant’s conviction. 6 However, this testimony did not establish that Grant’s BAC was 0.08

5
“If there was at that time 0.08 percent or more by weight by volume of alcohol in the
accused’s blood or 0.08 grams or more per 210 liters of the accused’s breath, it shall be
presumed that the accused was under the influence of alcohol intoxicants at the time of the
alleged offense.” Code § 18.2-269(A)(3).
6
In his supplemental brief, Grant argues that the statement of facts is “ambiguous on the
point of whether Officer Wolfe testified about the results of the breath analysis. The Statement
of Facts is inartfully drafted and unclear throughout the section regarding Officer Wolfe’s
testimony.” The pertinent portion of the statement of facts is included in a section that begins,
“When direct examination of Officer Wolfe continued, he testified as follows.” Accordingly, we
fail to see any ambiguity. However, we note that if Grant had concerns regarding the wording of
the statement of facts, Rule 5A:8(d) provides a procedure for objecting to the content of the
statement of facts that Grant failed to employ.
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grams or more per 210 liters of breath, as required by Code § 18.2-266(i). The mere statement

that Grant’s blood alcohol concentration was “0.11” was insufficient to establish that Grant’s

blood alcohol content exceeded the per se prohibition of Code § 18.2-266(i) (0.08 grams or more

per 210 liters of breath) or to invoke the legal presumption of intoxication provided by Code

§ 18.2-269. 7 The only evidence that put the officer’s testimony in context was the inadmissible

breath certificate. Accordingly, we are unable to say, beyond a reasonable doubt, that the facts

contained in the certificate played no role in the trial court’s verdict.

In addition, Code § 18.2-266(i) requires the chemical test used to determine an accused’s

blood alcohol content be “administered as provided in this article.” Similarly, Code § 18.2-269

requires that the chemical analysis of the accused’s breath must be prepared “in accordance with

the provisions of §§ 18.2-268.1 through 18.2-268.12.” In Essex v. Commonwealth, 228 Va. 273,

279, 322 S.E.2d 216, 219 (1984), our Supreme Court held that a blood alcohol content test

ordered by an emergency room physician and performed in a hospital, was probative evidence of

intoxication in a prosecution under Code § 18.2-266(ii), because it was “‘other relevant evidence

of the condition of the accused.’” 228 Va. at 286, 322 S.E.2d at 223 (quoting Code

7
Code § 18.2-269(A) states, in pertinent part:

In any prosecution for a violation of . . . clause (ii) . . . of
§ 18.2-266, . . . the amount of alcohol or drugs in the blood of the
accused at the time of the alleged offense as indicated by a
chemical analysis of the accused’s blood or breath to determine the
alcohol or drug content of his blood in accordance with the
provisions of §§ 18.2-268.1 through 18.2-268.12 shall give rise to
the following rebuttable presumptions:

* * * * * * *

(3) If there was at that time . . . 0.08 grams or more [by weight by
volume of alcohol] per 210 liters of the accused’s breath, it shall be
presumed that the accused was under the influence of alcohol
intoxicants at the time of the alleged offense[.]
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§ 18.2-268(i)). 8 However, the Court explained, while the evidence of the test results was

“competent because supported by a proper foundation,” the evidence “raised no legal

presumption of intoxication” because the test was not conducted in accordance with the

provisions of the applicable statute. Id. The Court based its holding on the plain language of the

statute: “Code § 18.2-269 expressly provides that the presumptions it creates arise only when a

blood-alcohol test is conducted ‘in accordance with the provisions of [§§ 18.2-268.1 through

18.2-268.12].’” Id. (internal citations omitted) (emphasis added); see also Groggins v.

Commonwealth, 34 Va. App. 19, 23, 537 S.E.2d 605, 607 (2005) (“Those presumptions apply

only when a blood or breath test is administered pursuant to Code §§ 18.2-268.1 through

-268.12.”).

As discussed in part (A) of this opinion, the only evidence that the breath test in this case

was administered either “as provided” by Title 18.2, Chapter Seven, Article Two of the Virginia

Code or “in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12” is in the

attestation clause on the certificate of analysis. Because the use of the attestation clause in this

8
At the time of the Essex decision, Code § 18.2-268(i) stated, in pertinent part:

In any trial for a violation of § 18.2-266 of the Code . . . this
section shall not otherwise limit the introduction of any relevant
evidence bearing upon any question at issue before the court, and
the court shall, regardless of the result of the blood or breath test or
tests, if any, consider such other relevant evidence of the condition
of the accused as shall be admissible in evidence.

The General Assembly repealed Code § 18.2-268, and replaced it with Code
§§18.2-268.1 through 18.2-268.12 in 1992. 1992 Va. Acts 1475. Code § 18.2-268.10(A)
currently states, in pertinent part:

In any trial for a violation of § 18.2-266 . . . the admission of the
blood or breath test results shall not limit the introduction of any
other relevant evidence bearing upon any question at issue before
the court, and the court shall, regardless of the result of any blood
or breath tests, consider other relevant admissible evidence of the
condition of the accused.
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case violated the Confrontation Clause, it cannot be used to prove that the breath test was

administered in accordance with the relevant statutes. Thus, in order to convict Grant of a per se

violation under Code § 18.2-266(i) or invoke the presumption of intoxication afforded by Code

§ 18.2-269(A)(3) the trial court must have relied on the facts recited in the attestation clause in

order to conclude that the test was conducted in accordance with the relevant statutes. Therefore,

we again cannot say with confidence that the admission of the certificate was harmless beyond a

reasonable doubt.

2. Other Evidence of Intoxication

The Commonwealth also argues that Officer Wolfe’s testimony regarding Grant’s

appearance and performance of field sobriety tests is sufficient to support Grant’s conviction.

We disagree.

In Bristol v. Commonwealth, 272 Va. 568, 636 S.E.2d 460 (2006), our Supreme Court

held that a certificate memorializing the results of a blood test administered pursuant to Code

§ 18.2-268.2 was admitted into evidence in error because the appellant was not arrested within

three hours of the offense, as required by Code § 18.2-268.2(A). 272 Va. at 575, 636 S.E.2d at

464. The Court rejected the Commonwealth’s “contention that the erroneous admission of [the

appellant’s] blood test result was harmless error.” Id. Because our Supreme Court believed that

“[i]t [was] probable that the circuit court, as the trier of fact, attached great weight to the

information contained in the certificate[,]” it declined to “reach the issue whether the other

evidence of intoxication, apart from the certificate of analysis, is sufficient to sustain [the

appellant’s] convictions.” Id.

Both this case and Bristol involved the determination of whether the erroneous admission

of a certificate of analysis was harmless error in a driving while intoxicated case. In Bristol,

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however, our Supreme Court applied the lesser standard of non-constitutional harmless error

because the error there was statutory. See Lavinder v. Commonwealth, 12 Va. App. 1003,

1005-06, 407 S.E.2d 910, 911 (1991) (en banc) (“In Virginia, non-constitutional error is

harmless ‘when it plainly appears from the record and the evidence given at trial that the parties

have had a fair trial on the merits and substantial justice has been reached.’” (quoting Code

§ 8.01-678) (emphasis in original)). Here, however, we must apply the more stringent standard

of constitutional harmless error. See id. at 1006, 407 S.E.2d at 911 (“Constitutional error, on the

other hand, is harmless only when the reviewing court is ‘able to declare a belief that it was

harmless beyond a reasonable doubt.’” (quoting Chapman, 386 U.S. at 24)). This case, like

Bristol, lacks overwhelming physical evidence of intoxication. See also Castillo v.

Commonwealth, 21 Va. App. 482, 490, 465 S.E.2d 146, 150 (1995); cf. Luginbyhl v.

Commonwealth, 48 Va. App. 58, 64-66, 628 S.E.2d 74, 77-79 (2006) (en banc) (assuming

without deciding that the breath-test certificate was admitted in violation of the Confrontation

Clause, but affirming conviction because the record included such overwhelming evidence of the

appellant’s guilt that the erroneous admission of the certificate was harmless beyond a

reasonable doubt). Thus, we cannot conclude that the error here was harmless beyond a

reasonable doubt.

III. Conclusion

In sum, we hold that the certificate of breath-test analysis is testimonial and that the facts

establishing the validity and admissibility of a breath-test result must be proved by live, in-court

testimony in accordance with Melendez-Diaz. 9 We accordingly conclude that the trial court

9
We recognize that an accused may waive his right of confrontation under the Sixth
Amendment. See Melendez-Diaz, 129 S. Ct. at 2534 n.3 (“The right to confrontation may, of
course, be waived, including by failure to object to the offending evidence; and States may adopt
procedural rules governing the exercise of such objections.”). Prior to Melendez-Diaz our
Supreme Court construed Code § 19.2-187.1 to be such a procedural rule. See Magruder, 275
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erred, reverse Grant’s conviction, and remand for further proceedings if the Commonwealth be

so advised.

Reversed and remanded.

Va. at 305, 657 S.E.2d at 124. Because Grant preserved his confrontation right under Code
§ 19.2-187.1, we express no opinion on whether Code § 19.2-187.1 continues to remain a
constitutionally valid notice and demand statute in light of the United States Supreme Court’s
decision in Melendez-Diaz. See Melendez-Diaz, 129 S. Ct. at 2539 (“[T]he [defendant’s] ability
to subpoena the analysts . . . is no substitute for the right of confrontation.”).
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