COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Kulp ∗
Argued at Richmond, Virginia
WILLIAM LEE KAUFFMAN
MEMORANDUM OPINION ∗∗ BY
v. Record No. 1725-98-2 JUDGE JAMES W. BENTON, JR.
JUNE 20, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS
William R. Shelton, Judge
David A. Oblon (Juliet D. Hiznay; Albo &
Oblon, L.L.P., on briefs), for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
The trial judge convicted William Lee Kauffman of driving a
motor vehicle while under the influence of alcohol in violation of
Code § 18.2-266. Kauffman contends he was denied the opportunity
to observe the process of analysis and see the blood-alcohol
reading as required by Code § 18.2-268.2(B). Therefore, he argues
the trial judge erred in refusing to suppress the certificate of
analysis of his blood alcohol level. For the reasons that follow,
we affirm the conviction.
∗
Retired Judge James E. Kulp took part in the consideration
of this case by designation pursuant to Code § 17.1-400,
recodifying Code § 17-116.01.
∗∗
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I.
On July 19, 1997, at 3:13 a.m., a police officer in the City
of Colonial Heights saw a motor vehicle swerving numerous times
outside the markers of the lane in which it was travelling. He
stopped the vehicle and requested a driver's license and vehicle
registration from the driver, William Kauffman. After the officer
noticed that Kauffman's eyes were bloodshot and that Kauffman had
a smell of alcohol about his person, he questioned Kauffman about
his alcohol consumption. Kauffman said he had drunk two or three
glasses of wine and two to three beers, consuming the last drink
about thirty minutes before the officer stopped him. After
Kauffman was unsuccessful in performing several dexterity tests,
the officer arrested him.
At the police station, the officer advised Kauffman of his
obligation to take a blood or breath test pursuant to Virginia's
implied consent law. When Kauffman elected to take a breath test,
the officer tested the blood alcohol content of Kauffman's breath
using the Intoxilyzer 5000 machine, Series 768VA.
Prior to trial, Kauffman moved to suppress the certificate of
analysis of the blood alcohol test. Kauffman argued that the
certificate should be suppressed because he was not provided the
opportunity to see either the test results of all breath samples
or the entire analysis as required under Code §§ 18.2-268.2 and
18.2-269.9.
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At the suppression hearing, Robert Masolf of the Division of
Forensic Science testified that the Intoxilyzer 5000 takes an "air
blank" to check the surrounding air, prior to testing a person's
breath. After that check, the machine runs a simulator sample
with a wet bath simulator that must meet certain tolerances and
then runs another "air blank" to clear the chamber. When the
person blows through the breath tube to the chamber, the machine
analyzes the person's breath for alcohol and stores the results
into memory. The machine then runs another "air blank" to clear
the chamber, waits two minutes, and then asks for another sample.
When the person breathes into the machine a second time, it
calculates the alcohol content of the second sample and compares
it with the alcohol content of the first sample. If the two
samples are within .02 of each other, the machine takes the lower
of the two samples and presents it as the final result. That
result is displayed on the machine and printed on a certificate.
On a weekly basis, the Division of Forensic Science downloads
the testing results from each machine via a modem connected to the
Division's offices in Richmond and obtains readings of both
comparison samples from each machine. The Division then reviews
the results of all tests conducted by each machine for quality
control and to "troubleshoot" any operational problems. Masolf
testified that the accused may obtain the higher of the two
samples by request from the Division. After hearing this
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evidence, the trial judge requested counsel to brief their
arguments and took the motion under advisement.
At trial, Kauffman entered a plea of not guilty. The
certificate of analysis, which indicated that Kauffman's blood
alcohol content was .12 grams per 210 liters of breath, was
admitted in evidence subject to the judge's ruling on the motion
to suppress. Following the presentation of evidence, the trial
judge stated that "if the certificate doesn't come in, I don't
think the evidence is sufficient for me to find beyond a
reasonable doubt that he was intoxicated, not from the evidence
that I have." At a hearing held at the conclusion of the trial,
the trial judge denied Kauffman's motion to suppress the
certificate and convicted Kauffman of driving under the influence
of alcohol. This appeal followed.
II.
Code § 18.2-268.2(B) provides as follows:
Any person so arrested for a violation of
§ 18.2-266(i) or (ii) or both, or
§ 18.2-266.1 or of a similar ordinance shall
submit to a breath test. If the breath test
is unavailable or the person is physically
unable to submit to the breath test, a blood
test shall be given. The accused shall,
prior to administration of the test, be
advised by the person administering the test
that he has the right to observe the process
of analysis and to see the blood-alcohol
reading on the equipment used to perform the
breath test. If the equipment automatically
produces a written printout of the breath
test result, the printout, or a copy, shall
be given to the accused.
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To implement this statute, Code § 18.2-268.9 provides, in
pertinent part, that "[a]ny individual conducting a breath test
under the provisions of [Code] § 18.2-268.2 shall issue a
certificate which will indicate . . . 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." In addition, Code
§ 18.2-268.9 provides that the certificate is admissible "when
attested by the individual conducting the breath test."
This appeal is controlled by our ruling in Rasmussen v.
Commonwealth, 31 Va. App. 233, 522 S.E.2d 401 (1999). In
response to an identical claim, we ruled as follows:
[Appellant] also contends that the term
"process of analysis" necessarily
encompasses the analysis of both samples
taken and that, therefore, he was entitled
to view the results obtained from each
sample. However, when construed in the
context of Code § 18.2-268.2 in its
entirety, we find that the term "process of
analysis" does not enlarge the scope of what
[appellant] is entitled to review. A
distinction must be made between the right
to see the steps undertaken to achieve a
result ("the process of analysis," such as
the taking of a sample), the operation of
the testing machine and the print-out of the
test results, and the right to see the
result itself. Here, the statute clearly
limits an arrestee's right to "see[ing] the
blood alcohol reading [printed] on the
equipment used to perform the breath test."
Code § 18.2-268.2(B).
Based on our holding in Breeden v.
Commonwealth, 15 Va. App. 148, 149, 421
S.E.2d 674, 675 (1992), [appellant] further
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contends that the failure to provide him the
opportunity to review the test result of the
other sample deprived him of access to
potentially exculpatory breathalyzer
evidence. This argument also lacks merit.
The testimony of the breathalyzer
operator at trial established that the
machine was properly calibrated and that it
printed a test result reflecting the lower
of the two sample readings. Thus, the only
evidence not made immediately available to
Rasmussen was evidence of an inculpatory
nature.
As [appellant] was afforded the
opportunity to view the print-out of the
blood-alcohol reading taken by the
breathalyzer machine, the requirements of
Code §§ 18.2-268.2 and 18.2-268.9 were met.
Id. at 239-40, 522 S.E.2d at 404 (footnotes omitted).
For these reasons, we hold that the trial judge did not err
in denying Kauffman's motion to suppress the certificate of
analysis. Accordingly, we affirm the judgment.
Affirmed.
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