Ricky Mason Durrette v. County of Spotsylvania

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Coleman and Elder
Argued at Richmond, Virginia

RICKY MASON DURRETTE
OPINION BY
v. Record No. 0541-95-2 JUDGE LARRY G. ELDER
MARCH 19, 1996
COUNTY OF SPOTSYLVANIA

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
J. Peyton Farmer, Judge

Benjamin H. Woodbridge, Jr. (Woodbridge &
Reamy, on brief), for appellant.

Stuart C. Sullivan, III, Assistant
Commonwealth's Attorney, for appellee.

Ricky Mason Durrette (appellant) appeals his conviction for

driving under the influence of alcohol in violation of

Spotsylvania County Code § 12-86 and Virginia Code § 18.2-266.

Appellant contends that the trial court erred in allowing into

evidence the Division of Forensic Science's certificate of

analysis establishing his blood alcohol content, where such

certificate was attested by a "division designated

representative" instead of by the Division Director. Because the

trial court did not err, we affirm the conviction.

I.

FACTS

At approximately 3:00 p.m. on October 26, 1994, appellant's

pickup truck struck Spotsylvania Deputy Sheriff Joseph Cagnina's

patrol car head on. Deputy Sheriff E. E. Crawford was dispatched
to the accident scene and detected an odor of alcohol coming from

appellant's person. Appellant told Crawford he had consumed "a

few drinks with co-workers" and some bourbon prior to the

collision. Police arrested appellant for driving under the

influence of alcohol. A blood test, taken after police secured

appellant's informed consent, revealed that his blood alcohol

level was .12 percent.

At trial, appellant objected to the introduction of the

blood test certificate, asserting that it was not properly

attested by the Division Director or an employee to whom the

Director delegated this duty. The Division's certificate of

analysis was signed by R. D. Cook, "a division employee," who was

also a "division designated representative," as noted directly

underneath the signature block. 1 The trial court, sitting

without a jury, overruled the objection and found appellant

guilty of driving under the influence of alcohol.

II.

PROPER DELEGATION AND ATTESTATION

Code § 18.2-268.7 states:

Upon receipt of a blood sample
1
The certificate's signature block reads:

TESTE __________________________________________________________
(Division Director) (Division Designated Representative)
A DIVISION EMPLOYEE

R. D. Cook's signature appears on the line marked "TESTE,"
and "Division Designated Representative" is circled.

-2-
 forwarded to the Division for analysis
pursuant to § 18.2-268.6, the Division shall
have it examined for its alcohol or drug or
both alcohol and drug content and the
Director shall execute a certificate of
analysis indicating the name of the accused;
the date, time and by whom the blood sample
was received and examined; a statement that
the seal on the vial had not been broken or
otherwise tampered with; a statement that the
container and vial were provided by the
Division and that the vial was one to which
the completed withdrawal certificate was
attached; and a statement of the sample's
alcohol or drug or both alcohol and drug
content. The Director shall remove the
withdrawal certificate from the vial, attach
it to the certificate of analysis and state
in the certificate of analysis that it was so
removed and attached. The certificate of
analysis with the withdrawal certificate
shall be returned to the clerk of the court
in which the charge will be heard. . . .
When a blood sample taken in accordance
with the provisions of §§ 18.2-268.2 through
18.2-268.6 is forwarded for analysis to the
Division, a report of the test results shall
be filed in that office. Upon proper
identification of the certificate of
withdrawal, the certificate of analysis, with
the withdrawal certificate attached, shall,
when attested by the Director, 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
. . . .

* * * * * * *

The Director may delegate or assign
these duties to an employee of the Division
of Forensic Science.

(Emphasis added).

Appellant asserts that in order for the certificate to meet

the statutory requirements as an exception to the hearsay rule,

-3-
the certificate, on its face, must establish that the Director

delegated his or her duties to the employee signing the

certificate's attestation clause. Appellant argues that in this

case, the certificate contains no information that R. D. Cook was

an employee to whom the Director delegated the duties imposed by

Code § 18.2-268.7. We disagree and hold that because the

certificate complies with Code § 18.2-268.7, the trial court did

not err in allowing the certificate into evidence.
As the Commonwealth contends, the Supreme Court's decision

in Hurley v. Charles, 112 Va. 706, 72 S.E. 689 (1911) instructs

our analysis.

The question before the Court in Hurley was
whether a will had been properly certified.
The will had been admitted to probate in the
county court of Tazewell County, and the
certificate of probate, attested by "A.B.
Buchanan, Deputy Clerk for S.M. Graham, Clerk
of the Circuit Court of Tazewell County,
Virginia" was found to be in proper form and
sufficient. The certificate accompanying the
actual will, however, contained only the
following: "A.B. Buchanan, D. Clerk." The
Supreme Court concluded that the will had
been properly certified because the two
documents, when read together, met the
requirements of Code § 3334. In reaching
this conclusion, the court stated: "[U]nder
these circumstances, it would be technical in
the extreme to reverse the judgment of the
circuit court when it plainly can be gathered
from the certificate of probate and
attestation of the copy of the will that A.B.
Buchanan is the deputy clerk of Tazewell
county, authorized by law to act in place of
his principal." Id. at 710, 72 S.E. at
[690-91].

Carroll v. Commonwealth, 10 Va. App. 686, 689-90, 396 S.E.2d 137,

-4-
139-40 (1990)(emphasis added).

In Hurley, the Court found that sufficient indicia proved

the signator was the deputy clerk authorized to act on behalf of

the clerk. See also Taylor v. Maritime Overseas Corp., 224 Va.

562, 299 S.E.2d 340 (1983)(holding documents introduced into

evidence were not properly certified where nothing showed that

the certifying officer was the documents' custodian); Morgan v.

Haley, 107 Va. 331, 58 S.E. 564 (1907)(holding a document would

clearly be valid where the certificate stated that the person

making it was clerk of the court, stated in whose office the deed

was recorded, or used initials to show that fact); Carroll, supra
(holding that the trial court's order was not properly

authenticated and certified as required by statute, where the

order itself contained no evidence that the signator was

authorized to act in the place of the clerk of court).

In this case, none of the problems posed in the cases cited

above are presented. The Division's certificate of analysis was

signed by R. D. Cook, "a division employee," who was also a

"division designated representative," as noted directly

underneath the signature block. Unlike Carroll, the certificate
of analysis, on its face, reveals that R. D. Cook is not only "a

division employee," but also was authorized as a "designated

representative" for the Division. Although a more artful

drafting of the certificate's attestation clause would have

better satisfied Code § 18.2-268.7's directives, the language

-5-
contained underneath the signature block was nevertheless

satisfactory in that regard.

For the foregoing reasons, we affirm appellant's conviction.

Affirmed.

-6-