COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Frank
Argued at Salem, Virginia
WILLIAM BASCOM HENRY
OPINION BY
v. Record No. 3243-03-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
JANUARY 11, 2005
COMMONWEALTH OF VIRGINIA/
CITY OF BRISTOL
FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL
Charles B. Flannagan, II, Judge
Robert M. Galumbeck (Galumbeck, Necessary, Dennis & Kegley,
on brief), for appellant.
Susan L. Parrish, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
William Bascom Henry (appellant) was convicted in a bench trial of driving under the
influence of alcohol in violation of Code § 18.2-266. The sole issue on appeal is whether the trial
court erred in admitting the breath analysis results into evidence when the breath testing equipment
was not stored in compliance with 6 VAC 20-190-40. For the reasons that follow, we affirm the
conviction.
I. BACKGROUND
Under familiar principles of appellate review, we examine the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible
therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
The facts of this case are not in dispute.1 On August 18, 2002 appellant was arrested for
driving under the influence of alcohol in the City of Bristol. He was administered a breath
analysis test at the sheriff’s office using the Intoxilyzer 5000 breath analysis machine (the
machine). His blood alcohol content registered 0.16. At a pretrial hearing, appellant moved to
suppress the breath analysis result on the basis that the machine was not properly located in
compliance with 6 VAC 20-190-40. At the time of appellant’s test, the machine was housed in a
secure area between the entrance to the jailor’s office and another sheriff’s office. It was not in a
partitioned space and was plugged into the same outlet as a copying machine. A desk and a
fingerprinting machine were located directly across from the machine. Other sheriff’s office
employees used the hallway and the copying machine. The area could not be entered without a
jailor allowing the access. Members of the public also used the hallway to access employee offices,
as did inmates who cleaned the offices and lobby area, but only if accompanied by a sheriff’s office
employee.
Danny Hager (Hager), an employee of the Division of Forensic Science, repaired and
maintained the machine at the Bristol Sheriff’s office. He testified that the machine is
self-correcting and aborts the test automatically if it fails to function properly. Under these
circumstances, the machine will inform the operator of its inability to provide an accurate result.
Hager testified that, because of this feature, even if the machine was improperly stored, its results
would be accurate.
The trial court denied appellant’s motion to suppress. It found that the machine was not
properly stored pursuant to 6 VAC 20-190-40 even though the Department of Criminal Justice
Services had approved the placement. However, the trial court concluded “that the [location of the
machine] is procedural and not substantive and in the absence of evidence that its location may have
1
In lieu of a transcript, the parties submitted an agreed statement of facts.
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affected the accuracy of the test results, the test results will not automatically be excluded from
evidence.” Appellant was convicted of driving under the influence, and he appeals that conviction.
II. ANALYSIS
Appellant concedes that if the breath test results were properly admitted into evidence,
they would be sufficient to convict him of driving under the influence. He contends, however,
that the results are inadmissible because the machine was not stored in compliance with 6 VAC
20-190-40, and the savings clause of Code § 18.2-268.11 is inapplicable to a breath test analysis.
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.” Blain v. Commonwealth,
7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). “[A] trial court ‘by definition abuses its discretion
when it makes an error of law.’” Shooltz v. Shooltz, 27 Va. App. 264, 271, 498 S.E.2d 437, 441
(1998) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)). “In determining whether the trial
court made an error of law, ‘we review the trial court’s statutory interpretations and legal
conclusions de novo.’” Rollins v. Commonwealth, 37 Va. App. 73, 79, 554 S.E.2d 99, 102 (2001)
(quoting Timbers v. Commonwealth, 28 Va. App. 187, 193, 503 S.E.2d 233, 236 (1998)). “[W]e
consider all relevant provisions of a statute and do not isolate particular words or phrases.” Lee
County v. Town of St. Charles, 264 Va. 344, 348, 568 S.E.2d 680, 682 (2002) (citations omitted).
“[A] statute should never be construed so that it leads to absurd results.” Branch v. Commonwealth,
14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992) (citations omitted).
Code §18.2-268.9 governs the admissibility of the breath test results and provides, in
pertinent part:
To be capable of being considered valid as evidence . . . 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
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Department of Criminal Justice Services, Division of Forensic
Science. The Division shall test the accuracy of the breath-testing
equipment at least once every six months.
The methods approved by the Department of Criminal Justice Services, Division of Forensic
Science, are set out in part in 6 VAC 20-190-40, as follows:
The breath test device must be stored in a clean, dry location that is
only accessible to an authorized licensee for the purpose of
actually administering a breath test, preventative maintenance
check, or other official uses.
Because the machine was located in a hallway of the sheriff’s department accessible to those
other than authorized licensees, we agree with the trial court’s conclusion that the equipment was
not stored in strict compliance with 6 VAC 20-190-40. Therefore, we now address the issue of
substantial compliance.
Code § 18.2-268.11 provides, in pertinent part:
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.
(Emphasis added). We also note that 6 VAC 20-190-20 specifically provides a substantial
compliance standard when analyzing the instant scenario:
These regulations and the steps set forth herein relating to the
taking, handling, identification and disposition of breath samples,
the testing of such samples, and the completion and filing of any
form or record prescribed by these regulations are procedural in
nature and not substantive. Substantial compliance therewith shall
be deemed sufficient.
Reading Code § 18.2-268.9, 6 VAC 20-190-40, and Code § 18.2-268.11 together, we conclude
that, in the absence of a showing of prejudice by the appellant, substantial compliance is
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sufficient for the admission of the test results. See Cutright v. Commonwealth, 43 Va. App. 593,
600-01, 601 S.E.2d 1, 10-11 (2004); Rollins, 37 Va. App. at 80, 554 S.E.2d at 103; Snider v.
Commonwealth, 26 Va. App. 729, 732, 496 S.E.2d 665, 666 (1998). To treat the breath test
differently than the blood test in the application of Code § 18.2-268.11 would “lead to an absurd
result” not intended by the legislature. Therefore, the sole issue remaining before us is whether
the police substantially complied with the applicable breath test methodology. We hold that they
did.
No evidence established that the police failed to comply with any of the regulations
governing the “taking, handling, identification and disposition of breath samples” set out in
either the Virginia Code or the Virginia Administrative Code, other than the improper placement
of the breath analysis machine. The failure to comply with this procedure alone does not
prohibit the officers’ actions from meeting the substantial compliance standard in the instant
case. The evidence demonstrates that the machine has a self-correcting mechanism that informs
the test administrator when it cannot provide an accurate result. The machine gave no such
warning in this case. There is no allegation that the machine was tampered with or that the results
were incorrect. Appellant failed to otherwise demonstrate, and in fact there is no allegation, that
the results of the breath test were inaccurate, or that the failure to comply with the storage
methods prejudiced his rights. We therefore hold that the trial court did not err in admitting the
breath test results pursuant to Code § 18.2-268.11.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
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