COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
CARL EDWARD ANDERSON
OPINION BY
v. Record No. 2704-95-2 JUDGE ROSEMARIE ANNUNZIATA
JUNE 17, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Cullen D. Seltzer, Assistant Public Defender
(David J. Johnson, Public Defender, on
briefs), for appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Following a bench trial, appellant, Carl E. Anderson, was
convicted of DUI, third offense, and operating a motor vehicle
after having been adjudicated an habitual offender. On appeal,
he contends the trial court erred in admitting into evidence the
certificate of breath analysis and the order adjudicating him an
habitual offender. We disagree and affirm his convictions.
I.
The facts are not in dispute. On August 16, 1995, Officer
VanLandingham stopped appellant after observing him make an
illegal left turn. The officer detected an odor of alcohol about
appellant and noticed that his eyes were bloodshot. Appellant
admitted that he had consumed at least fifteen beers during the
preceding four and one-half hour period. He then performed
poorly on field sobriety tests directed by the officer.
Appellant failed the heel-to-toe test, twice losing his balance,
as well as the one-legged stand; he further stated he was unable
to recite the alphabet between the letters F and N. The officer
arrested appellant and transported him to the station house where
the officer gave appellant a breath analysis test.
Officer VanLandingham testified concerning the testing
procedures she followed. She described a self-test that the
breath analysis machine runs to assure that no residual alcohol
in the machine or in the air affects the test result. None was
detected in the present case.
The machine printed a certificate of analysis, which showed
appellant's breath alcohol content to be .13 grams per 210 liters
of breath. The certificate further indicated that the breath
analysis machine had been tested for accuracy by the Division of
Forensic Science on April 19, 1995, and the certificate's
attestation clause contained the following statement:
THE EQUIPMENT ON WHICH THE BREATH TEST WAS
CONDUCTED HAS BEEN TESTED WITHIN THE PAST SIX
MONTHS AND FOUND TO BE ACCURATE.
Officer VanLandingham attested to those statements by signing the
attestation clause. VanLandingham acknowledged that she had no
personal knowledge that the machine had been tested for accuracy.
The certificate was admitted into evidence over appellant's
objection.
In 1991, the Circuit Court of Campbell County entered an
order adjudicating appellant an habitual offender and directing
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that he "shall not operate a motor vehicle on or upon the
highways of the Commonwealth of Virginia." The order was
admitted into evidence over appellant's objection.
II.
Code § 18.2-268.9 1 requires that the breath analysis
certificate indicate, inter alia, that "the equipment on which
1
Code § 18.2-268.9 provides in part:
To be capable of being considered valid
as evidence in a prosecution under § 18.2-266
or § 18.2-266.1, 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, [and that] the
equipment on which the breath test was
conducted has been tested within the past six
months and has been found to be accurate
. . . . 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.
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the breath test was conducted has been tested within the past six
months and has been found to be accurate. . . ." Admissibility
of the certificate as evidence of the facts therein stated is
premised on attestation "by the individual conducting the breath
test." That is, under the statute only the test-taker may
properly attest to the statements contained in the certificate.
Among the other statutory requisites, the certificate in the
present case plainly "indicates" that the breath analysis machine
was tested and found to be accurate within the proper time frame.
Pursuant to the statute, Officer VanLandingham, the test-taker,
attested to what the certificate indicated, and the court
admitted the certificate into evidence.
Appellant contends that the admission of the certificate was
error, however, because VanLandingham had no personal knowledge
of the machine's performance testing. VanLandingham's
attestation, he contends, is therefore a nullity, rendering the
certificate inadmissible. We disagree.
The Commonwealth is not required to establish a foundation
for the statements contained in the certificate. Stroupe v.
Commonwealth, 215 Va. 243, 245, 207 S.E.2d 894, 896 (1974).
Manifestly, the General Assembly intended to
spare the Commonwealth the prosecutorial and
financial burdens of calling two public
officers to testify in every drunk driving
case involving breathalyzer test evidence.
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
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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.
Here, defendant had the right to subpoena the
test operator for that purpose. He chose not
to exercise that right. Even had he called
the test operator and 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. Officer VanLandingham's personal knowledge of the required
test for accuracy affected, if anything, the weight of the
certificate as evidence, not its admissibility.
Appellant argues that Stroupe is distinguishable from the
present case because the defendant in Stroupe conceded that the
certificate contained every "averment, datum, signature, and
attestation specifically required by the statute." 215 Va. at
244-45, 207 S.E.2d at 896. Appellant's proffered distinction of
Stroupe is without meaning. Appellant does not, nor could not,
contend that the certificate lacked an attestation by Officer
2
VanLandingham. Rather, appellant's contention is that the
officer's attestation is not sufficient to establish the
admissibility of the certificate because she had no personal
knowledge of the fact to which she attested. In other words,
2
Compare Frere v. Commonwealth, 19 Va. App. 460, 452 S.E.2d
682 (1995), upon which appellant would like to rely, in which the
certificate in question contained no attestation clause.
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appellant argues that no foundation existed for the statements
contained in the certificate, exactly the issue disposed of by
Stroupe.
In a further attempt to distinguish Stroupe, appellant
argues that his position would require only the attestor of the
certificate to have personal knowledge of the statements it
contained, not the test-taker. Appellant's position is not
well-taken. Because, under the statute, the test-taker must
attest to the certificate, appellant's position leads to the
ineluctable result that the test-taker would have to calibrate
the machine personally or to witness its calibration and be able
to testify that it was performed accurately. Such a result would
be plainly contrary to the intent of the legislature in enacting
the statute, see Stroupe, 215 Va. at 245, 207 S.E.2d at 896, and
we decline to accept it. See Branch v. Commonwealth, 14 Va. App.
836, 839, 419 S.E.2d 422, 424 (1992) ("[T]he plain, obvious, and
rational meaning of a statute is always preferred to any curious,
narrow or strained construction . . . .").
Accordingly, we find no error in the trial court's decision
to admit the certificate of breath analysis.
III.
Appellant contends the order adjudicating him an habitual
offender is void because the circuit court lacked jurisdiction to
enter it. Code § 46.2-356 provides that
[n]o license to drive motor vehicles in
Virginia shall be issued to an habitual
offender (i) for a period of ten years from
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the date of any final order of a court . . .
finding the person to be an habitual offender
and (ii) until the privilege of the person to
drive a motor vehicle in the Commonwealth has
been restored by an order of a court of
record entered in a proceeding as provided in
this article.
Appellant contends that the failure of the court which
adjudicated him an habitual offender to limit the prohibition on
his privilege to drive for a period of ten years renders the
order void. Accordingly, he argues, the trial court erred in
admitting the habitual offender order into evidence.
Code § 46.2-356 is not a jurisdictional limitation on the
circuit courts. See Manning v. Commonwealth, 22 Va. App. 252,
255-56, 468 S.E.2d 705, 707 (1996); Davis v. Commonwealth, 12 Va.
App. 246, 248, 402 S.E.2d 711, 712 (1991). Rather, it directs
the Department of Motor Vehicles in the issuance of driver's
licenses to individuals found to be habitual offenders.
Accordingly, we find no merit in appellant's argument that the
order adjudicating him an habitual offender is void.
The decision of the trial court is accordingly affirmed.
Affirmed.
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Benton, J., concurring in part and dissenting in part.
I agree with the majority's conclusion that the order
adjudicating Carl E. Anderson an habitual offender is not void.
However, I would hold that the trial judge erred in admitting the
certificate of Anderson's breath test analysis into the evidence.
Accordingly, I would reverse Anderson's DUI conviction.
The admissibility of a certificate of analysis in a
prosecution for a violation of Code § 18.2-266 is controlled by
Code § 18.2-268.9, which provides in relevant part as follows:
Any individual conducting a breath test
under the provisions of [Code] § 18.2-268.2
shall issue a certificate which will indicate
that . . . the equipment on which the breath
test was conducted has been tested within the
past six months and has been found to be
accurate . . . . This certificate, when
attested by the individual conducting the
breath test, shall be admissible . . . .
Id. (emphasis added). A proper attestation by the individual who
conducted the breath test is required before the certificate can
be admitted under Code § 18.2-268.9 as an exception to the rule
against hearsay. Cf. Gray v. Commonwealth, 220 Va. 943, 945, 265
S.E.2d 705, 706 (1980); Frere v. Commonwealth, 19 Va. App. 460,
465, 452 S.E.2d 682, 686 (1995) ("[I]n order to be admissible as
an exception to the hearsay rule, a certificate introduced under
[a similar statute] must bear the examiner's signature as part of
an attestation clause included on the certificate."). Thus, the
validity of the attestation affects not just the weight of the
evidence, but its admissibility. Id.
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Anderson was tested on August 16, 1995. Officer Carla
VanLandingham, the individual who conducted the breathalyzer test
and signed the certificate, testified that she had not tested the
breathalyzer machine because she was "not allowed access to
that." The certificate, which was printed by the breathalyzer
machine, stated that the machine "was tested for accuracy" on
April 19, 1995. However, when Officer VanLandingham was asked on
cross-examination, "You don't have any personal knowledge that
[the test was performed]," she answered, "I wasn't there when it
was done, that is correct." Thus, the sole basis for Officer
VanLandingham's testimony that the machine had been tested within
the last six months was the report given by the machine itself.
"The preparer's signature on an attestation clause . . .
serve[s] the purpose of officially certifying the genuineness and
accuracy of the certificate's contents, a result that a mere
signature cannot achieve." Frere, 19 Va. App. at 465, 452 S.E.2d
at 686. Indeed, the plain meaning of the word, "attest," is
"[t]o affirm to be correct." The American Heritage Dictionary
140 (2d ed. 1991). Officer VanLandingham's testimony proved that
she did not have personal knowledge that the machine had been
tested other than her knowledge gained from the report given by
the machine.
When a witness A on the stand testifies, "B
told me that event X occurred," . . . [h]e
may be regarded as asserting the event upon
his own credit, i.e., as a fact to be
believed because he asserts that he knows it.
But when it thus appears that his assertion
is not based on personal observation of event
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X, his testimony to that event is rejected,
because he is not qualified by proper sources
of knowledge to speak to it. This involves a
general principle of testimonial knowledge
. . . .
5 John Henry Wigmore, Wigmore on Evidence § 1361 (James H.
Chadbourn rev. 1974).
When Officer VanLandingham testified that she made the
attestation because the machine "told" her that it had been
tested for accuracy, she revealed that her attestation was based
merely upon the machine's report and not her own personal
observation. Thus, Officer VanLandingham was not competent to
attest that the machine had been tested because she was "not
qualified . . . to speak to" the matter. Id. Simply put, her
attestation was invalid.
Moreover, the machine's report did not even state that the
machine was found to be accurate. 3 Because Officer VanLandingham
3
No evidence proved that when the machine was tested for
accuracy by the Division of Forensic Science on April 19, 1995 it
was found accurate.
The certificate contains the following recitals:
DATE TEST CONDUCTED WED AUG. 16, 1995
WAS TESTED FOR ACCURACY
BY THE DIVISION OF FORENSIC
SCIENCE ON WED APR. 19, 1995
Officer VanLandingham's attestation clause is the place that
contains the boiler plate statement "that the equipment . . . has
been tested within the past six months and found to be accurate."
However, that attestation was worthless because Officer
VanLandingham testified that "[she] wasn't there when it was
done." She had no basis in fact to make that attestation.
Furthermore, nothing in the boiler plate language of the
attestation clause states that when the machine was tested on
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did not have independent personal knowledge that the equipment
had been tested and clearly had no basis to conclude that the
machine had been found to be accurate, I would hold that the
certificate was not properly attested as required by Code § 18.2-
268.9. Thus, I would hold that the trial judge improperly
admitted the certificate into the evidence.
The majority states that "[Anderson] argues that there was
no foundation for the statements contained in the certificate,
exactly the issue disposed of by Stroupe." The majority misses
the distinction between this case and Stroupe v. Commonwealth,
215 Va. 243, 207 S.E.2d 894 (1974). In Stroupe, the defendant
"conced[ed] that the certificate contained every . . .
attestation specifically required by the statute" but "argue[d]
that [the attestations] were simple conclusions and that the
certificate was inadmissible until the Commonwealth had called
the test operator to prove the foundation for the conclusions."
Id. at 244-45, 207 S.E.2d at 896 (emphasis added). No evidence
or argument in Stroupe challenged the validity of the
attestation. See id. Rather, Stroupe argued that, in addition
to meeting the statutory attestation requirements, the
Commonwealth also was required to prove by independent evidence a
foundation for the conclusions contained in the certificate. See
id. at 245, 207 S.E.2d at 896. The Supreme Court held that the
General Assembly specifically intended to "spare the Commonwealth
(..continued)
April 19, 1995, it was accurate.
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[that] . . . burden[]." Id.
Anderson, however, disputes the validity of the attestation.
The testimony of Officer VanLandingham showed that the
attestation she made was not based upon her own knowledge.
Anderson does not argue that the Commonwealth should be required,
in every case, to prove by independent evidence the foundation
for the statements in the certificate. Rather, Anderson argues
that where, as here, the evidence proves that the attestation was
not based upon the maker's own knowledge and is thus "a mere
signature," Frere, 19 Va. App. at 465, 452 S.E.2d at 686, the
attestation fails to meet the requirements of Code § 18.2-268.9
and the certificate is inadmissible. The difference between
Anderson's argument and Stroupe's argument is substantive, not
merely semantic.
Finally, the majority asserts that requiring the individual
who makes the attestation to obtain personal knowledge that the
machine has been tested and found to be accurate within the past
six months would conflict with the intent of the General
Assembly. I disagree. "[T]he General Assembly intended to spare
the Commonwealth the prosecutorial and financial burdens of
calling two public officers to testify in every drunk driving
case involving breathalyzer test evidence." Stroupe, 215 Va. at
245, 207 S.E.2d at 896 (emphasis added). The General Assembly
did not intend to spare the officer who conducts the test the
burden of having personal knowledge that the machine was tested
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and found to be accurate within the last six months. I find no
evidence that the General Assembly intended to dispense with the
requirement that the maker of the attestation have personal
knowledge that the facts to which the maker attests are true.
For these reasons, I dissent. I would reverse the
conviction and remand for a new trial.
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