COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Lemons
Argued at Salem, Virginia
MARK ALGIE REYNOLDS
OPINION BY
v. Record No. 1921-98-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
JUNE 29, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
G. O. Clemens, Judge
David D. Walker (A. Kristin Shandor;
David D. Walker, P.C.), for appellant.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
Mark Algie Reynolds (appellant) was convicted of driving
under the influence of alcohol, second offense, in violation of
Code § 18.2-266, and driving in violation of the terms of a
restricted license, in violation of Code § 18.2-272. He
contends the trial court erred in admitting the certificate of
breath analysis because the police officer's training did not
comply with statutory mandates. He also argues the evidence was
insufficient to convict him of driving in violation of the terms
of a restricted operator's license. For the following reasons,
we affirm.
I. BACKGROUND
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, 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).
So viewed, the evidence established that on April 26, 1998,
Officer M. S. Woodring of the Roanoke County Police Department
was on routine patrol when he observed appellant's vehicle
repeatedly cross into the adjacent lane. After Officer Woodring
stopped the vehicle, he observed appellant pass his driver's
license as he was looking for it in his wallet. Appellant had a
moderate odor of alcohol about him, and his eyes were
"bloodshot, watery, and glassy." As appellant got out of his
car, he leaned against it to keep his balance. Appellant stated
that he had been working at the "Shrimpfest" that day and had
consumed two or three beers.
Officer Woodring administered several field sobriety tests,
and appellant failed all but one. Appellant was arrested and
taken to the local jail where Officer Woodring administered a
breath test on an Intoxilyzer 5000. The results indicated a
blood alcohol content of .14 percent. Appellant was charged
with driving under the influence of alcohol (DUI), second
offense.
Officer Woodring also charged appellant with driving in
violation of his restricted license. On July 14, 1997,
appellant had been convicted of driving under the influence of
alcohol by the United States District Court for the Western
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District of Virginia. The court order suspended appellant's
license for one year and gave him "a restricted license for the
purpose of driving to/from VASAP and to/from work." At the time
of his arrest in the instant case, appellant told Officer
Woodring that he was coming from a friend's house.
Appellant filed a pretrial motion to dismiss the DUI
charge, arguing that the results of the breath test were
inadmissible because Officer Woodring did not meet the statutory
training requirements of Code § 18.2-268.9. Officer Woodring
was initially licensed by the Division of Forensic Science
(Division) to operate the Breathalyzer 900A. He obtained this
license by attending a forty-hour training class offered by the
Division. In 1995, the Division began replacing the older
Breathalyzer 900A with a new model known as the Intoxilyzer
5000. With the introduction of the new model, each previously
licensed operator was required to undergo an additional eight
hours of training. After receiving his additional training,
Officer Woodring was issued a new qualifying license for use
with the Intoxilyzer 5000.
At a pretrial hearing on appellant's motion to dismiss,
Officer Woodring testified that the Intoxilyzer 5000 and the
Breathalyzer 900A use different forms and procedures to set up
the machines. The primary difference between the procedures is
that only one breath sample is required for the Breathalyzer
900A, whereas at least two samples are required for the
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Intoxilyzer 5000. Occasionally, a third breath test may be
necessary. Although Officer Woodring testified that the two
machines operated under different technologies, he noted that
the "internal mechanism, the actual analysis of the breath that
is in the machine" is controlled internally and the operator has
"nothing to do with it."
Dr. Irma B. Adams, technical instructor/coordinator for the
Department of Criminal Justice Services, also testified at the
pretrial hearing. Although new officers are required to take
the forty-hour program, Dr. Adams stated that those operators
who had already received an initial forty hours of training and
who possessed a valid license were only required by the Division
to receive an additional eight hours of training to run the
Intoxilyzer 5000. In this case, she confirmed that Officer
Woodring completed the initial forty-hour training course on the
Breathalyzer 900A and the eight-hour re-certification class on
the Intoxilyzer 5000.
In comparing the Breathalyzer 900A and Intoxilyzer 5000
training courses, Dr. Adams stated that much of the material was
similar. For example, in both courses the instructors discuss
"chemistry and the production of alcohol, the pharmacology of
alcohol and how it affects the body; and the relevant portions
of the Virginia Code and [case law]." One of the primary
differences between the two machines is the number of breath
samples required for a valid test. Additionally, the operator
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is required to blow through the simulator on the Breathalyzer
900A to create a "standard" sample, whereas the Intoxilyzer 5000
performs this function automatically.
The trial court found that Officer Woodring met the
forty-hour training requirement under the statute and,
therefore, denied appellant's motion to dismiss. At trial,
appellant pled not guilty to both charges. Appellant testified
that he was employed by the Norfolk and Southern Railroad, but
at the time of the stop he was working as a volunteer at the
Shrimpfest party. He stated that he consumed four beers that
day and thought he was not driving in violation of his
restricted license because he was traveling to and from work as
a volunteer at the Shrimpfest. However, he admitted on
cross-examination that his VASAP caseworker advised him that he
could only drive to and from his actual place of work, which did
not include volunteer work at the Shrimpfest. At the conclusion
of the evidence, the trial court convicted appellant of both
charges.
II. TRAINING REQUIREMENTS OF CODE § 18.2-268.9
Appellant contends the trial court erred by allowing into
evidence the certificate of breath analysis because Officer
Woodring's training failed to comply with Code § 18.2-268.9. He
argues that the statute requires the operator to undergo forty
hours of training on the specific equipment being used, the
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Intoxilyzer 5000. Since Officer Woodring had received only
eight hours of training on that particular machine, appellant
concludes, the Commonwealth failed to comply with the statute.
We disagree.
Code § 18.2-268.9 provides in pertinent part:
To be capable of being considered valid
as evidence in a prosecution under
§ 18.2-266, § 18.2-266.1, or a similar
ordinance, 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 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 Division shall establish a training
program for all individuals who are to
administer the breath tests. The program
shall include at least forty hours of
instruction in the operation of the
breath-test equipment and the administration
of such tests. Upon a person's successful
completion of the training program, the
Division may license him to conduct
breath-test analyses.
(Emphasis added.)
In the instant case, appellant contends the statute
mandates forty hours of training each time a machine is changed
or updated. He argues that although Officer Woodring was
certified on the Breathalyzer 900A, the statute requires that he
undergo an additional forty hours of instruction on the
operation of the Intoxilyzer 5000.
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"'Where a statute is unambiguous, the plain meaning is to
be accepted without resort to the rules of statutory
interpretation.'" Sykes v. Commonwealth, 27 Va. App. 77, 80,
497 S.E.2d 511, 512 (1998) (quoting Last v. Virginia State Bd.
of Med., 14 Va. App. 906, 910, 421 S.E.2d 201, 205 (1992)).
"'"Courts are not permitted to rewrite statutes. This is a
legislative function. The manifest intention of the
legislature, clearly disclosed by its language, must be
applied."'" Id. at 80-81, 497 S.E.2d at 512-13 (quoting Barr v.
Town & Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d
672, 674 (1990) (quoting Anderson v. Commonwealth, 182 Va. 560,
566, 29 S.E.2d 838, 841 (1944))).
Applying these rules to the instant case, we hold that Code
§ 18.2-268.9 requires forty hours of training on "breath test
equipment" in general and does not mandate the instruction on a
particular make or model. The language of the statute refers to
forty hours of instruction on "the breath test equipment and the
administration of such tests." Code § 18.2-268.9 (emphasis
added). Contrary to appellant's interpretation, the statute
does not limit the training program to a particular machine;
rather, it requires training on "breath test equipment" and the
procedures involving the breath tests. If the legislature had
intended that operators undergo a forty-hour training program
for each individual type of breath test equipment, then it would
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have said so in the statute. 1 See Klarfeld v. Salsbury, 233 Va.
277, 284-85, 355 S.E.2d 319, 323 (1987) ("If the legislature had
intended to include [a broader term], it would have stated so by
the use of that term. . . ."); Forst v. Rockingham Poultry Mktg.
Coop. Inc., 222 Va. 270, 278, 279 S.E.2d 400, 404 (1981).
This interpretation of Code § 18.2-268.9 is fully
consistent with the policy and interpretation of the statute by
the Division of Forensic Science, which, as the enforcing
agency, is entitled to have its interpretation of the statute
afforded great deference. See Commonwealth v. Research Analysis
Corp., 214 Va. 161, 163, 198 S.E.2d 622, 624 (1973); Specialty
Auto Body v. Cook, 14 Va. App. 327, 330, 416 S.E.2d 233, 235
(1992). Here, the Division interpreted the statute to mean
that, when newer breath test machines are put into service,
those operators who have valid licenses are only required to
receive an additional eight hours of training. Furthermore, the
1
On March 21, 1999, the General Assembly approved an
amendment, which deleted this provision from Code § 18.2-268.9.
Effective July 1, 1999, amended Code § 18.2-268.9 provides in
pertinent part:
The Division shall establish a training
program for all individuals who are to
administer the breath test. Upon a person's
successful completion of the training
program, the Division may license him to
conduct breath-analyses. Such license shall
identify the specific types of breath test
equipment upon which the individual has
successfully completed training.
Acts of Assembly, 1999, C. 273 (emphasis added).
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Division's policy in requiring only an additional eight hours of
supplemental training on the Intoxilyzer 5000 complies with the
licensing requirements outlined in the Virginia Administrative
Code, which provides the following:
B. [L]icenses shall be granted to
individuals who demonstrate the ability to
perform breath tests accurately and reliably
in accordance with the methods approved by
the division and who satisfactorily explain
the theoretical basis for such chemical
analysis.
C. Only individuals successfully
completing a course of instruction of a
minimum of 40-hours in breath testing and
the administration of such tests shall be
deemed to have demonstrated competence to
qualify for the issuance of a license.
D. Licenses shall be limited in scope to
those breath test devices on which the
individual applying for initial or renewal
license has demonstrated competence. This
limitation may be upon the device(s) on
which the applicant received instruction in
the course referred to in subsection c or in
such further instruction as may be necessary
to qualify the individual for additional
breath test device(s).
1 Virginia Administrative Code § 30-50-100, at 99-100 (1996)
(emphasis added).
In the instant case, we conclude that the trial court
properly admitted the certificate of breath analysis. 2 The
2
The trial court specifically held that Code § 18.2-268.9
requires forty hours of training on the "breath test equipment"
in general, stating the following:
The [statutory] language says, "the breath
test equipment." [Defense counsel] says the
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evidence established that Officer Woodring successfully
completed "forty hours of instruction in the operation of the
breath-test equipment and the administration of such tests."
Code § 18.2-268.9. Furthermore, he received an additional eight
word "the" is very important . . . and makes
reference to one specific item. But I don't
think it does that because that sentence,
that language is qualified by the rest of
that sentence, that language is qualified by
the rest of that statute that says that
forty hours can be made up of "the breath
test equipment and the administration of
such tests." That means that the
legislature is contemplating more than one
type of test, which would contemplate more
than one type of equipment. And, frankly,
the word "equipment" is a plural word rather
than a singular word and it seems to me like
that the statute has not said that the forty
hours has to pertain to any particular piece
of equipment.
Again, I use very common terms. Farm
equipment doesn't mean one piece. It means
plows and tractors, and rakes and so forth.
Baseball equipment doesn't mean just one
type. It means bats and gloves and masks
and so forth. Kitchen equipment does not
mean one particular type. It could mean
pots and pans, and stoves. . . . So I think
. . . the legislature has contemplated this.
So my decision is that the statute does not
say that the forty hours has to be at any
one time. And it does [say] that the forty
hours can be for the instruction and
administration of the tests. . . . I so rule
the prior training time on the [Breathalyzer
Model] 900A can be a part of the forty hours
that is mandated by the statute and can be
applicable to this . . . Intoxilyzer 5000
Model rather than the 900A model. So, I do
not find that the motion to dismiss with
regard to the inadequacy of the legal
training is valid.
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hours of supplemental training on the Intoxilyzer 5000. This
"further instruction as may be necessary to qualify the
individual for additional breath test device(s)" complies with
the licensing requirements provided in 1 Virginia Administrative
Code § 30-50-100. Nothing in the Virginia Code or the
Administrative Code requires a licensee to take forty hours of
training on each breath test device. Because Woodring was
properly licensed and qualified, and he followed correct
procedures in operating the Intoxilyzer 5000, we affirm the
trial court's decision admitting the certificate of analysis
into evidence. 3
III. SUFFICIENCY OF EVIDENCE
Appellant next contends the evidence was insufficient to
prove he operated his vehicle in violation of his restricted
operator's license. He argues that the Commonwealth failed to
establish the parameters of his restricted license and that he
knew his restrictions prohibited him from driving to and from
"civic work."
When the sufficiency of the evidence is challenged on
appeal, we determine whether the evidence, viewed in the light
most favorable to the Commonwealth, and the reasonable
inferences fairly deducible from that evidence support each and
3
Although not addressed on brief, we note that the Supreme
Court in Brooks v. City of Newport News, 224 Va. 311, 295 S.E.2d
801 (1982), found the validity of the administrator's license to
be a "matter of substance" subject to attack.
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every element of the charged offense. See Moore v.
Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740 (1997); Derr
v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991).
"In so doing, we must discard the evidence of the accused in
conflict with that of the Commonwealth, and regard as true all
the credible evidence favorable to the Commonwealth and all fair
inferences that may be drawn therefrom." Watkins v.
Commonwealth, 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998).
We will not reverse the judgment of the trial court, sitting as
the finder of fact in a bench trial, unless it is plainly wrong
or without evidence to support it. See Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
On July 14, 1997, appellant was convicted of driving under
the influence by the United States District Court for the
Western District of Virginia. The court order suspended
appellant's license for one year and gave him "a restricted
license for the purpose of driving to/from VASAP and to/from
work." When Officer Woodring stopped appellant on the instant
charges, appellant claimed to have been coming from a friend's
house. He also told the officer he had been working at the
Shrimpfest, which he testified was "civic work." He stated that
he had consumed four beers while there.
At trial, appellant admitted that his VASAP caseworker
advised him that he could drive only to and from his actual
place of work. Moreover, appellant conceded on
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cross-examination that he knew his "work" did not include going
to the Shrimpfest. The restricted license and order permitted
appellant to travel to and from his work and did not permit him
to travel to locations to do volunteer "civic work." The
Commonwealth's evidence, including the appellant's own
testimony, was competent, was not inherently incredible and was
sufficient to prove beyond a reasonable doubt that appellant was
driving outside his restrictions.
For the foregoing reasons, appellant's convictions are
affirmed.
Affirmed.
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