COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Senior Judge Hodges
Argued at Richmond, Virginia
DAVID EDWARD POLLARD
MEMORANDUM OPINION * BY
v. Record No. 2638-98-2 JUDGE LARRY G. ELDER
SEPTEMBER 21, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
John F. Daffron, Jr., Judge
Fredrick S. Kaufman (Nachman & Kaufman,
L.L.P., on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
David Edward Pollard (appellant) was convicted in a bench
trial for driving under the influence of alcohol, his third such
conviction in five years, in violation of Code § 18.2-266. On
appeal, he contends the trial court erroneously admitted the
results of a breathalyzer test into evidence. He argues
credible evidence establishes, contrary to testing requirements,
that he had cigarette tobacco in his mouth before and during the
test and that cigarette tobacco contains alcohol likely to have
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
skewed the test results. 1 For the reasons that follow, we affirm
appellant's conviction.
"'The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be
disturbed on appeal in the absence of an abuse of discretion.'"
James v. Commonwealth, 18 Va. App. 746, 753, 446 S.E.2d 900, 904
(1994) (quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371
S.E.2d 838, 842 (1988) (citation omitted)). Ordinarily,
[t]he measure of the burden of proof with
respect to factual questions underlying the
admissibility of evidence is proof by a
preponderance of the evidence. . . . In
determining whether the Commonwealth has met
its burden, the trial court, acting as a
fact finder, must evaluate the credibility
of the witnesses, resolve the conflicts in
their testimony and weigh the evidence as a
whole. Its factual finding "is to be given
the same weight by the appellate court as is
accorded the finding of fact by a jury."
1
The only issue raised by appellant in regard to the
breathalyzer results was its admission into evidence. The
precise issue on which this appeal was granted was "[w]hether
the court erred in ruling the Certificate of Analysis admissible
when the defendant presented evidence of having chewed cigarette
tobacco between the time of his arrest and the time of the
analysis." To the extent that appellant now attempts to
challenge the underlying reliability or accuracy of the
breathalyzer itself, rather than the breath sample it analyzed,
or the sufficiency of the evidence to support his conviction, no
appeal was granted on either of these issues. Therefore, we do
not consider them on appeal. See Rule 5A:12(c); Cruz v.
Commonwealth, 12 Va. App. 661, 664 n.1, 406 S.E.2d 406, 407 n.1
(1991).
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Albert v. Commonwealth, 2 Va. App. 734, 738, 347 S.E.2d 534, 536
(1986) (quoting Witt v. Commonwealth, 215 Va. 670, 674, 212
S.E.2d 293, 296-97 (1975) (citations and footnote omitted)).
Code § 18.2-268.2 provides, in relevant part, that "[a]ny
person . . . arrested for a violation of § 18.2-266(i) or (ii)
. . . 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." Under Code
§ 18.2-268.9, "[t]o be capable of being considered valid as
evidence in a prosecution under § 18.2-266 . . . , chemical
analysis of a person's breath shall be performed . . . in
accordance with methods approved by the Department of Criminal
Justice Services, Division of Forensic Science." The code also
provides, however, that
[t]he steps set forth in §§ 18.2-268.2
through 18.2-268.9 relating to taking,
handling, identifying and disposing of blood
or breath samples are procedural and not
substantive. Substantial compliance shall
be sufficient. Failure to comply with any
steps or portions thereof . . . shall not of
itself be grounds for finding the defendant
not guilty, but shall go to the weight of
the evidence and shall be considered with
all the evidence in the case; however, the
defendant shall have the right to introduce
evidence on his own behalf to show
noncompliance with the aforesaid procedures
or any part thereof, and that as a result
his rights were prejudiced.
Code § 18.2-268.11. The Commonwealth bears the burden of
proving substantial compliance with the statutes' requirements.
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See Snider v. Commonwealth, 26 Va. App. 729, 732, 496 S.E.2d
665, 666 (1998). In evaluating whether the test as administered
substantially complied with the governing regulations, the trial
court is entitled to consider testimony before it regarding the
impact of the testing procedures on the reliability of the
outcome. See Hudson v. Commonwealth, 21 Va. App. 184, 186, 462
S.E.2d 913, 914 (1995) (reversing conviction because
Commonwealth failed to present any evidence permitting finding
of substantial compliance).
Here, appellant contends, in essence, that the Commonwealth
failed to prove substantial compliance with statutory
requirements for administering the breath test because the
evidence established he had cigarette tobacco in his mouth
before and during the test and the Commonwealth failed to prove
that alcohol in the tobacco did not skew the breathalyzer
results. As a result, he argues, the trial court erred in
admitting the breathalyzer test results. We reject this
contention and hold that the evidence supports a finding of
substantial compliance, permitting admission of the results
under Code § 18.2-268.11.
Assuming without deciding that appellant had the cigarette
tobacco in his mouth during the twenty-minute observation period
or during the test itself, this fact does not render the
resulting certificate of analysis inadmissible. Pursuant to
Code § 18.2-268.11, as set out above, "[s]ubstantial compliance
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[with the procedures for taking a breath sample] shall be
sufficient. Failure to comply with any steps or portions
thereof . . . shall go to the weight of the evidence and shall
be considered with all the evidence in the case." Here, the
evidence permitted a finding, by at least a preponderance of the
evidence, that any alcohol in appellant's mouth did not skew the
breath test results and, therefore, that appellant's breath test
substantially complied with statutory requirements for its
admission into evidence. The information contained in the
manual for the Intoxilyzer 5000 breathalyzer machine indicates
that the presence of "mouth alcohol" in the sample will cause a
spike in the breath sample curve which, in turn, will cause the
machine to report an "INVALID SAMPLE." Because Officer Kifer
confirmed that the machine did not report an invalid sample in
appellant's case, the evidence supported a finding that the test
substantially complied with the statute, and the trial court did
not err in admitting the test results into evidence. Appellant
was permitted, in compliance with the statute, "to introduce
evidence on his own behalf to show noncompliance with the
aforesaid procedures . . . and that as a result his rights were
prejudiced." Code § 18.2-268.11.
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For these reasons, we hold that the trial court did not err
in denying appellant's motion to suppress the certificate.
Therefore, we affirm appellant's conviction.
Affirmed.
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