COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia
CALVIN L. WOOLRIDGE
OPINION BY
v. Record No. 0121-98-2 JUDGE LARRY G. ELDER
MARCH 23, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Ernest P. Gates, Judge Designate
Cullen D. Seltzer (David J. Johnson, Public
Defender, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Calvin Woolridge (appellant) appeals from his jury trial
conviction for driving while intoxicated in violation of Code
§ 18.2-266. On appeal, he contends the trial court erroneously
(1) admitted the results of a breath test certificate prepared by
a machine which, without explanation, printed a random arabic
numeral on the face of the certificate in the middle of the
testing official's name; (2) admitted evidence that appellant was
offered a preliminary breath test; and (3) refused appellant's
proffered instruction telling the jury that it could consider
appellant's lack of flight from the arresting officer as a factor
in determining his guilt or innocence. For the reasons that
follow, we disagree and affirm the conviction.
I.
FACTS
On the evening of December 31, 1996, Officer James E.
Schultz, Jr., stopped appellant for speeding. When Schultz asked
for appellant's license and registration, he noticed the odor of
alcohol coming from appellant's person. In response to an
inquiry from Schultz, appellant admitted consuming "a couple of
drinks." Schultz asked appellant to perform some field sobriety
tests, which Schultz demonstrated before asking appellant to
perform them. Appellant accurately performed one test which
involved counting backward from fifty-seven to forty-one, but he
was unable successfully to complete either the nine-step
heel-to-toe walk or the one-leg stand. Schultz then offered
appellant a field alka-sensor test and arrested appellant for
driving while intoxicated.
Schultz transported appellant to police headquarters, where
he administered a breathalyzer test on the Intoxilizer 5000.
Schultz, who was trained to operate the machine, placed his
personal identification card in the machine, from which the
machine determined that he was its operator. Schultz entered
appellant's name into the machine by hand. Schultz then
administered the test, and the machine produced a certificate of
breath analysis indicating that appellant had a blood alcohol
concentration of 0.14 grams per 210 liters of breath. On the
portion of the certificate listing the operator's name, the
machine printed "SCHULTZ4 JAMES E., JR." Schultz then signed the
certificate, which stated that the test was conducted with
approved equipment in accordance with the specifications of the
Division of Forensic Science and that the machine "ha[d] been
tested within the past six months and found to be accurate."
Schultz explained that he was not personally present when the
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calibration test was performed on August 30, 1996, but that his
training to operate the machine included information that the
machine would have been removed from service if it had not been
accurate at the time of the last calibration test.
At trial, appellant moved to exclude (1) the breath test
certificate and (2) testimony that appellant was offered and was
given a preliminary breath test. The trial court ruled that the
certificate was admissible and that Officer Schultz could testify
that he offered appellant a preliminary breath test. Officer
Schultz ultimately testified that "a field alcosensor test was
offered to [appellant]."
At the close of the evidence, appellant proffered Jury
Instruction X, which he described as "the inverse of [a] flight
instruction." The instruction read: "If a person does not flee
the scene of an alleged crime, that fact creates no presumption
that the person is innocent of having committed the crime.
However, it is a circumstance which you may consider along with
the other evidence." The trial court refused the instruction.
The jury convicted appellant of the charged offense.
II.
ANALYSIS
A.
ADMISSIBILITY OF BREATH TEST CERTIFICATE
Appellant contends the trial court erroneously admitted the
breath test certificate. He argues that the certificate did not
comply with statutory requirements because the machine printed a
random number on the certificate in the middle of the testing
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official's name and the testing official, Officer Schultz, could
not confirm, based on personal knowledge, that the breathalyzer
machine was functioning properly either at the time the machine
was tested for accuracy by the Division of Forensic Science as
required by Code § 18.2-268.9 or at the time of appellant's
breath alcohol test. We hold that our decision in Anderson v.
Commonwealth, 25 Va. App. 26, 486 S.E.2d 115 (1997), read in
conjunction with Code § 18.2-268.9, controls our disposition of
these issues. We are guided by the principle that "[t]he
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."
Code § 18.2-268.9 provides, in relevant part, as follows:
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.
* * * * * * *
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
Division'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
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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. Any such
certificate of analysis purporting to be
signed by a person authorized by the Division
shall be admissible in evidence without proof
of seal or signature of the person whose name
is signed to it. . . .
Interpreting this statute in Anderson, we rejected the
contention that the certificate at issue, which contained the
same relevant wording in the attestation clause, was inadmissible
because the person administering the test had no personal
knowledge of the machine's performance testing. 25 Va. App. at
31, 486 S.E.2d at 117; see id. at 34 n.3, 486 S.E.2d at 119 n.3
(Benton, J., dissenting) (reciting language in attestation
clause). We held that "[t]he Commonwealth is not required to
establish a foundation for the statements contained in the
certificate." Id. at 30, 486 S.E.2d at 116. We reasoned:
"When the certificate contains what the
statute requires, the statute makes the
certificate self-authenticating for purposes
of admissibility. 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 he . . . 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."
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Id. at 30, 486 S.E.2d at 117 (quoting Stroupe v. Commonwealth,
215 Va. 243, 245, 207 S.E.2d 894, 896 (1974)); see also Code
§ 18.2-268.11 (providing that substantial compliance with
procedures in Code §§ 18.2-268.2 to 18.2-268.9 is sufficient to
permit admissibility of blood or breath test results). As a
result, we held in Anderson that the "[testing officer's]
personal knowledge of the required test for accuracy affected, if
anything, the weight of the certificate as evidence, not its
admissibility." 1 25 Va. App. at 30, 486 S.E.2d at 117.
Appellant conceded on oral argument before us that the only
distinction between this case and Anderson is that the
certificate here contained a random numeral printed in the middle
of the testing official's name, but appellant contends that this
distinction required exclusion of the certificate. We disagree.
The same principles we enunciated in Anderson apply to Officer
Schultz's ability to confirm that the test was accurate when
administered to appellant. Simply put, the statute does not
require proof of the accuracy of an individual test as a
prerequisite to admissibility of the resulting certificate.
1
The Virginia Supreme Court on the merits denied Anderson's
petition for appeal, see Anderson v. Commonwealth, No. 971680
(Va. Dec. 17, 1997), making the holding in Anderson fully binding
on this Court. See Harward v. Commonwealth, 5 Va. App. 468, 476,
364 S.E.2d 511, 515 (1988) (noting that "'decision to . . .
refuse a petition for writ of error is based upon . . . the
merits of the case'" (quoting Saunders v. Reynolds, 214 Va. 697,
700, 204 S.E.2d 421, 424 (1974))); id. (noting that "doctrine
. . . appl[ies] even when 'the precise issue involved' resulted
in denial of a petition for a writ of error in a separate case"
(quoting Stillwell v. Commonwealth, 219 Va. 214, 226, 247 S.E.2d
360, 368 (1978))).
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Here, although Schultz could not explain why the machine had
printed the number "4" on the breath analysis certificate in the
middle of his name, the certificate complied with all the
requirements contained in Code § 18.2-268.9, and the burden was
on appellant to prove a substantive, rather than merely
procedural, irregularity sufficient to defeat the certificate's
admissibility. See Anderson, 25 Va. App. at 30, 486 S.E.2d at
117 (citing Stroupe, 215 Va. at 245, 207 S.E.2d at 896). Compare
Brooks v. City of Newport News, 224 Va. 311, 314-15, 295 S.E.2d
801, 803 (1982) (holding that section of statute requiring
testing official to possess a valid license to conduct breath
tests was substantive such that certificate plainly indicating
that license of test administrator had expired was inadmissible)
(decided under former § 18.2-268(r1), predecessor of current
§ 18.2-268.9). Officer Schultz explained that the machine read
his name from an operator identification card Schultz inserted
into the machine. A variety of possible reasons might explain
the machine's inclusion of the number "4" in Schultz's name,
including an error in the information encoded on Schultz's
identification card or an error in the machine's reading of the
card. However, neither of these possibilities produces a
substantive irregularity sufficient to defeat the certificate's
admissibility. Therefore, the unexplained presence of the number
"4" affected only the weight to be given the certificate, not its
admissibility. See Anderson, 25 Va. App. at 30, 486 S.E.2d at
117.
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Appellant also contends on brief that the trial court failed
to consider other issues critical to the certificate's
admissibility -- whether it was relevant, material and more
probative than prejudicial. Because appellant did not challenge
the certificate's admissibility at trial on any of these grounds,
we do not consider on appeal his contention that any of these
factors may have barred admission of the certificate. See Rule
5A:18.
For these reasons, we hold that the trial court did not
abuse its discretion in admitting the certificate into evidence. 2
B.
ADMISSIBILITY OF TESTIMONY THAT APPELLANT
WAS OFFERED A PRELIMINARY BREATH TEST
Under Code § 18.2-267(A), "[a]ny person who is suspected of
a violation of § 18.2-266 or § 18.2-266.1 shall be entitled, if
such equipment is available, to have his breath analyzed to
determine the probable alcoholic content of his blood." The
statute provides that, "[w]henever the breath sample analysis
indicates that alcohol is present in the person's blood, the
officer may charge the person with [driving while intoxicated]."
Code § 18.2-267(D). However, it also provides that "[t]he
results of the breath analysis shall not be admitted into
evidence in any prosecution [for driving while intoxicated]."
Code § 18.2-267(E) (emphasis added). Therefore, we have held
that the results of the preliminary breath test may be admitted
2
Appellant challenges only the admissibility of the
certificate. He does not challenge the sufficiency of the
evidence to prove his blood alcohol level violated Code
§ 18.2-266.
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into evidence at a pretrial probable cause or suppression
hearing, see Stacy v. Commonwealth, 22 Va. App. 417, 423-24, 470
S.E.2d 584, 587 (1996), but "the results . . . shall not be
admitted into evidence in any prosecution" which determines guilt
or innocence, Code § 18.2-267(E); see Stacy, 22 Va. App. at
421-23, 470 S.E.2d at 586-87. The statute does not expressly
prohibit the introduction of evidence indicating that the accused
has been offered a preliminary breath test.
Appellant contends that evidence that the test was offered,
coupled with evidence that appellant was then arrested for DUI,
was tantamount to admitting the results of the test. He also
contends that the fact that the test was offered was irrelevant
and immaterial; because appellant did not question whether
Officer Schultz had probable cause to make the arrest, the
offering of the test tended to prove no fact in issue.
We disagree. First, the mere fact that appellant did not
challenge whether Officer Schultz had probable cause for the
arrest did not render immaterial the evidence that the test was
offered. Under settled principles, a defendant may not prevent
the Commonwealth from offering evidence of a fact simply because
the defendant is willing to stipulate to that fact or does not
contest its existence. We repeatedly have held that the
Commonwealth is not required to accept a defendant's offer to
stipulate and is entitled to offer evidence to prove any fact
relevant to the charged offense. See Cantrell v. Commonwealth, 7
Va. App. 269, 287, 373 S.E.2d 328, 337 (1988) (despite
defendant's offer to stipulate, permitting Commonwealth to offer
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evidence of defendant's affair as motive for murder of wife);
Glover v. Commonwealth, 3 Va. App. 152, 161-62, 348 S.E.2d 434,
440 (1986) (despite defendant's offer to stipulate, permitting
Commonwealth to prove prior convictions to support conviction
under recidivist statute), aff'd, 236 Va. 1, 372 S.E.2d 134
(1988). Here, appellant admits that whether Officer Schultz
offered appellant a preliminary breath test was relevant to
whether Schultz had probable cause to make the arrest. The mere
fact that appellant did not contest this issue did not nullify
the Commonwealth's right to offer evidence on that issue.
Second, we reject appellant's contention that the admission
of this evidence led to the impermissible inference that the test
showed the presence of alcohol. The evidence proved only that
Officer Schultz offered appellant the test; it did not disclose
whether appellant agreed or refused to take the test and,
therefore, provided no impermissible inference regarding the
results of the test.
For these reasons, we hold that the trial court did not
abuse its discretion in admitting the challenged evidence.
C.
ENTITLEMENT TO PROFFERED JURY INSTRUCTION X
"[T]he trial court should instruct the jury only on those
theories of the case which find support in the evidence." Morse
v. Commonwealth, 17 Va. App. 627, 632-33, 440 S.E.2d 145, 149
(1994). "Although an instruction correctly states the law, if it
is not applicable to the facts and circumstances of the case, it
should not be given. An instruction must be supported by more
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than a scintilla of evidence." Hatcher v. Commonwealth, 218 Va.
811, 813-14, 241 S.E.2d 756, 758 (1978) (citation omitted).
"[T]he weight of the credible evidence that will amount to more
than a mere scintilla . . . is a matter to be resolved on a
case-by-case basis" by assessing the evidence in support of a
proposition against the "other credible evidence that negates"
it. Brandau v. Commonwealth, 16 Va. App. 408, 411-12, 430 S.E.2d
563, 565 (1993). On appeal, "we view the evidence with respect
to the refused instruction in the light most favorable" to the
appellant. Boone v. Commonwealth, 14 Va. App. 130, 131, 415
S.E.2d 250, 251 (1992).
Assuming without deciding that appellant's proffered
instruction correctly states the law, we nevertheless hold that
the instruction was not supported by more than a scintilla of
evidence. The evidence, viewed in the light most favorable to
appellant, shows that Officer Schultz stopped appellant for
speeding and that appellant knew he was speeding at the time he
was stopped. Therefore, appellant's failure to flee the scene
rather than stop in response to Officer Schultz's lights does not
provide even a scintilla of evidence to support an inference that
appellant was innocent of speeding under the facts of this case.
Further, that appellant stopped for Officer Schultz's
flashing lights and remained at the scene after Schultz began to
investigate appellant's possible intoxication also does not
provide the scintilla of evidence necessary to support
appellant's proffered instruction. As we previously held in a
different context, an accused's willingness to do something he or
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she is required by law to do is not probative of his or her guilt
or innocence, and evidence that the accused engaged in the
required act, therefore, is not admissible. See Hammond v.
Commonwealth, 17 Va. App. 565, 568, 439 S.E.2d 877, 879 (1994)
(en banc) (holding that request of accused to take a blood or
breath test, under circumstances where Code § 18.2-268.2 required
accused to take test, "prove[d] nothing about [the] guilt or
innocence [of the accused]" such that evidence was not relevant
and trial court did not err in refusing to admit it). Here,
appellant was required by law to stop in response to Officer
Schultz's flashing lights and to remain at the scene while
Schultz investigated his possible intoxication. See Code
§ 46.2-817 (criminalizing driver's failure to stop upon signal
from police officer); Code § 18.2-479 (criminalizing flight from
custody on charge of misdemeanor or felony). Therefore,
appellant's compliance was not probative of his innocence, and
the trial court did not err in refusing his instruction to the
contrary.
For these reasons, we affirm appellant's conviction.
Affirmed.
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