COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Clements
Argued at Richmond, Virginia
JAMES M. HEGEDUS
MEMORANDUM OPINION * BY
v. Record No. 2732-00-3 JUDGE JEAN HARRISON CLEMENTS
OCTOBER 30, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF BUENA VISTA
Humes J. Franklin, Jr., Judge
H. David Natkin for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
James M. Hegedus was convicted in a bench trial of driving
under the influence of alcohol, a misdemeanor, in violation of
Code § 18.2-266. The sole issue on appeal is whether the trial
court erred in admitting into evidence the certificate of breath
analysis where the machine used to measure the alcohol content of
Hegedus' breath had not been calibrated in strict compliance with
the regulations established by the Department of Criminal Justice
Services, Division of Forensic Science. Finding no error, we
affirm the conviction.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
value, this opinion recites only those facts and incidents of the
proceedings as necessary to the parties' understanding of the
disposition of this appeal.
The evidence is before us on an agreed statement of facts.
On April 3, 2000, Officer Darrell M. Slagle, of the Buena Vista
Police Department, clocked Hegedus travelling forty-three miles
per hour in a twenty-five mile-per-hour zone. Officer Slagle
stopped Hegedus and subsequently placed him under arrest for
driving under the influence of alcohol in violation of Code
§ 18.2-266.
Thereafter, Officer Slagle administered a breath-analysis
test to Hegedus using the Intoxilyzer 5000 machine. The officer
conducted the test in accordance with the training he had received
for the Intoxilyzer 5000 machine. Pursuant to that training, the
validation test of the machine was performed before, rather than
after, Hegedus gave a sample of his breath. Upon completion of
the breath-analysis test, the machine showed that Hegedus had a
blood alcohol content of ".09 grams per 210 liters of breath."
The only issue before us on appeal is Hegedus' claim that the
trial court erred in admitting the certificate of breath analysis
into evidence because, although the subject breath test was
performed in accordance with the officer's training for the
Intoxilyzer 5000, the test was not conducted in strict compliance
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with administrative regulation 1 VAC 30-50-90(C),1 which required
that the validation test of the machine be performed immediately
after, rather than before, the breath sample is given.
We addressed the same issue in Rollins v. Commonwealth, ___
Va. App. ___, ___ S.E.2d ___ (2001), decided this day. In that
case, Rollins argued, like Hegedus, that the operator's failure to
conduct the validation test of the Intoxilyzer 5000 machine
immediately after the breath analysis, as specifically required by
1 VAC 30-50-90(C), rendered the certificate of breath analysis
inadmissible. We held, however, that, because the breath-test
methods set forth by the Department of Criminal Justice Services,
Division of Forensic Science in 1 VAC 30-50-90 were procedural,
rather than substantive, in nature, substantial, rather than
strict, compliance with those methods was sufficient. Id. at
___, ___ S.E.2d at ___. We further concluded that the trial court
properly admitted the certificate of breath analysis into
evidence, because the Intoxilyzer 5000 machine operator in that
case, "having administered the breath-analysis test to Rollins in
accordance with 1 VAC 30-50-90(A), substantially complied with the
breath-test methods approved by the Department of Criminal Justice
Services, Division of Forensic Science." Id. at ___, ___ S.E.2d
at ___.
1
Although applicable to this case, 1 VAC 30-50-90 has since
been amended and renumbered as 6 VAC 20-190-110(3).
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The same reasoning and conclusions are equally applicable
here. Thus, for the reasons more particularly stated in Rollins,
we affirm Hegedus' conviction.
Affirmed.
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