COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata
and Senior Judge Duff
Argued at Alexandria, Virginia
CHARLES R. CAREY, S/K/A
CHARLES RISING CAREY
MEMORANDUM OPINION * BY
v. Record No. 1888-98-4 JUDGE CHARLES H. DUFF
APRIL 25, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
J. Burkhardt Beale (Boone, Beale, Cosby &
Long, on brief), for appellant.
(Mark L. Earley, Attorney General; Donald E.
Jeffrey, III, Assistant Attorney General, on
brief), for appellee. Appellee submitting
on brief.
On appeal, Charles Rising Carey (appellant) challenges his
conviction for driving while intoxicated. He contends that the
Commonwealth denied "his statutory or due process rights to
observe the process on the breath test machine pursuant to the
Fifth and Fourteenth Amendments to the United States Constitution
and Virginia Code §[§] 18.2-268.2 and . . . 18.2-268.9." We
disagree, and affirm the conviction.
In lieu of filing a trial transcript, appellant filed a
written statement of facts, see Rule 5A:8(c), indicating that he
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
made a motion "to deny the introduction of the breath sample
results based upon the fact Carey was not allowed to observe the
process of the two separate samples on the machine even though he
had been explained that he had the right to do so." That is the
only argument contained in the record relating to the
Commonwealth's failure to provide two samples.
In Rasmussen v. Commonwealth, 31 Va. App. 233, 522 S.E.2d
401 (1999), we addressed Rasmussen's contention "that the result
of a breathalyzer test administered to him following his arrest
was improperly admitted at trial." Id. at 235-36, 522 S.E.2d at
402. Relying on Code §§ 18.2-268.2(B) and 18.2-268.9, Rasmussen
made the same argument as appellant; he contended he was denied
his right to obtain and observe the results "for each and every
breath sample taken." Id. at 237-38, 522 S.E.2d at 403. We
held that "nothing in the [DUI] statutes indicates an intention
to give an accused the right to immediately view results of a
breath test other than those actually printed out by the
equipment used to conduct the test." Id. at 239, 522 S.E.2d at
404. We concluded that Code § 18.2-268.2(B) "clearly limits an
arrestee's right to 'see[ing] the blood alcohol reading
[printed] on the equipment used to perform the test.'" Id.
(citation omitted). Thus, where an accused is "afforded the
opportunity to view the print-out of the blood-alcohol reading
taken by the breathalyzer machine, the requirements of Code
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§§ 18.2-268.2 and 18.2-268.9 [a]re met." Id. at 240, 522 S.E.2d
at 404.
Viewed in the light most favorable to the Commonwealth, see
Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678
(1997), the evidence proved that appellant "gave two breath
samples, but only one sample result was reported on the [machine
and on the] paperwork." Matthew Smallwood, the breath test
operator, attested to the certificate of analysis and certified
that the certificate was "an accurate record of the test
conducted," that the test was conducted in accordance with the
equipment, methods and specifications approved by the Division of
Forensic Science and that the equipment was recently tested and
found to be accurate. See Rasmussen, 31 Va. App. at 239 n.2, 522
S.E.2d at 404 n.2 (explaining that properly attested certificate
of analysis "assured an accused that the machine is operating as
designed" and that, "[i]n the case of the I[ntoxilyzer]-5000, the
certification indicates that the machine accurately tested the two
breath samples and reported the lower of the two samples tested").
Appellant observed all the process the legislature intended
he observe under the statute. Therefore, he suffered no
statutory violation. Accordingly, the trial court did not err
in admitting the certificate of analysis.
Appellant's allegation that he "suffered from a deprival of
the due process of law from obtaining exculpatory evidence on
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his behalf" was not raised at trial. Accordingly, we will not
consider it for the first time on appeal. See Rule 5A:18.
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed.
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