COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia
STUART ALLEN BOTTOMS
OPINION BY
v. Record No. 0317-94-2 JUDGE LARRY G. ELDER
JUNE 6, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
John F. Daffron, Jr., Judge
W. Edward Riley, IV (Boone, Beale, Carpenter
& Cosby, on brief), for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Stuart Allen Bottoms (appellant) appeals his conviction for
driving under the influence of alcohol in violation of Code
§ 18.2-266. Appellant contends that the trial court erred in
failing to suppress blood test results because the circuit court
clerk did not send appellant a copy of the certificate of
analysis after he had requested it in writing pursuant to Code
§ 19.2-187(ii). Because the certificate was not delivered to
appellant seven days prior to trial, we reverse the conviction
and remand the case for retrial if the Commonwealth be so
advised.
The record shows that on September 4, 1993, Trooper James
Elmore of the Virginia State Police saw appellant make a turn
without using his turn signal as he was operating a motor
vehicle. After appellant was pulled over and exhibited signs of
intoxication, he submitted to a blood test, which revealed that
his blood alcohol content was .12 percent. Appellant was charged
with driving under the influence and tried without a jury on
January 25, 1994.
Fifty-four days before trial, appellant requested a copy of
the certificate of analysis of his blood test from the clerk of
the circuit court. Appellant did not notify the Commonwealth's
attorney of this request. At trial, appellant objected to the
admission of the certificate of analysis of his blood test,
because he had not received a copy of the certificate prior to
trial, pursuant to Code § 19.2-187(ii).
In response to appellant's objection, the Commonwealth moved
for a continuance to provide appellant with the opportunity to
review the certificate. Appellant objected to the continuance on
the basis that it would be prejudicial to his case. The court
overruled the objection and offered appellant two alternatives:
(1) to continue the case in order to allow the Commonwealth to
provide appellant with the certificate pursuant to the statute;
or (2) to proceed with the case after a short recess in order to
allow appellant time to review the certificate. Appellant took
exception to the court's ruling and selected the second option.
The certificate was received into evidence over appellant's
objection, and he was convicted of driving under the influence.
Code § 19.2-187 states:
In any hearing or trial of any criminal offense or in
any proceeding brought pursuant to Chapter 22.1 . . .
of this title, a certificate of analysis of a person
performing an analysis or examination . . . shall be
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admissible as evidence of the facts therein stated and
the results of the analysis or examination referred to
therein, provided (i) the certificate of analysis is
filed with the clerk of the court hearing the case at
least seven days prior to the hearing or trial and (ii)
a copy of such certificate is mailed or delivered by
the clerk or attorney for the Commonwealth to counsel
of record for the accused at least seven days prior to
the hearing or trial upon request of such counsel.
(Emphasis added).
As we have stated on numerous occasions, "[a] certificate of
analysis is not admissible if the Commonwealth fails strictly to
comply with the provisions of Code § 19.2-187." Woodward v.
Commonwealth, 16 Va. App. 672, 674, 432 S.E.2d 510, 512 (1993);
Mullins v. Commonwealth, 12 Va. App. 372, 374-75, 404 S.E.2d 237,
238-39 (1991); Basfield v. Commonwealth, 11 Va. App. 122, 124,
398 S.E.2d 80, 81 (1990). Code § 19.2-187 is construed strictly
against the Commonwealth. Mullins, 12 Va. App. at 374, 404
S.E.2d at 238.
The Commonwealth argues that by agreeing, over objection, to
try the case later in the day rather than continue the case for
seven days, appellant waived his objection to the admissibility
of the certificate of analysis. This argument assumes that a
continuance for seven days after trial had begun would have
allowed the Commonwealth to comply with Code § 19.2-187(ii).
Code § 19.2-187(ii) requires that the certificate be mailed
or delivered to counsel "at least seven days prior to . . .
trial." (Emphasis added). A continuance of any length after the
trial had begun would not have remedied the Commonwealth's non-
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compliance. Because the Commonwealth failed strictly to comply
with the requirements of Code § 19.2-187, the judgment of the
trial court is reversed and remanded for further proceedings if
the Commonwealth be so advised.
Reversed and remanded.
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