COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
MARK ALLEN VAN LEAR
v. Record No. 1924-94-3 MEMORANDUM OPINION *
BY JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA FEBRUARY 20, 1996
FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY
Duncan M. Byrd, Jr., Judge
Dabney L. Pasco (Christopher Wm. Schinstock;
St. Clair & Associates, on briefs), for appellant.
Robert B. Beasley, Jr., Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Mark Allen Van Lear appeals his conviction for operating a
motor vehicle while under the influence of alcohol. Van Lear
contends that the trial court erred by (1) admitting into
evidence the certificate of breath alcohol analysis, and
(2) applying the statutory presumption of intoxication to the
breath test results. We hold that the trial court did not err by
admitting the certificate of analysis into evidence, but did err
by considering the results as stated in the certificate
sufficient to apply the Code § 18.2-269(A)(3) statutory
1
presumption of intoxication. Accordingly, we reverse the
conviction and remand the case to the trial court.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
Gardner v. Commonwealth, 195 Va. 945, 954, 81 S.E.2d 614,
619 (1954), holds that "under the influence of alcohol" is
equivalent to "intoxication" and adopts the definition of
intoxication from Code § 4-12(14).
The Certificate of Breath Alcohol Analysis, introduced by
the Commonwealth and admitted by the trial judge, stated that the
defendant's breath alcohol content was ".10% grams per 210 liters
of breath." The defendant contends that Code § 18.2-269(A)(3)
requires that the method for reporting the results of the
analysis of an accused's breath alcohol content be the number of
grams of alcohol per 210 liters of the accused's breath, which
necessarily requires that the results be expressed in whole
numbers, rather than as a percentage. 2 Furthermore, he argues,
it makes no sense to express breath test results as a percentage
of "grams per 210 liters of breath" and because the certificate
is inconsistent, on its face, with the breath test operator's
attestation, "that the above is an accurate record of the test
conducted," the trial court should not have admitted the
certificate of analysis into evidence.
The Commonwealth acknowledges that an error exists on the
certificate of analysis, but argues that it is apparent that the
"%" sign was inadvertently inserted in the certificate.
Therefore, the Commonwealth contends that the trial court
properly concluded that the certificate of analysis showed the
2
Code § 18.2-269(3)(A) provides:
If there was at that time 0.08 percent or more by
weight by volume of alcohol in the accused's blood or
0.08 grams or more per 210 liters of the accused's
breath, it shall be presumed that the accused was under
the influence of alcohol intoxicants at the time of the
alleged offense.
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test results to be .10 grams of alcohol per 210 liters of the
defendant's breath.
"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)). Here, there is no indication that the breath
test was performed improperly or that the test operator was not
qualified. See Brooks v. City of Newport News, 224 Va. 311, 315,
295 S.E.2d 801, 803 (1982). Code § 18.2-268.9 provides, among
other things, the "certificate, when attested by the individual
conducting the breath test, shall be admissible in any court in
any criminal or civil proceeding as evidence of the facts therein
stated and of the results of such analysis." Moreover, if, as
the Commonwealth contends, the "%" sign was inserted in error,
that error is a procedural matter, rather than a substantive one
affecting the test results, and does not defeat the admissibility
of the certificate. See Code § 18.2-268.11; cf. Brooks, 224 Va.
at 315, 295 S.E.2d at 803 (holding that the qualification of the
test operator is a substantive matter). Thus, although the
measurement as expressed in the certificate of analysis is stated
in terms other than as provided by the statute and the evidence
fails to explain the significance of ".10% grams," 3 the trial
3
Although .10% mathematically converts to the whole number,
.001, both the appellant and the Commonwealth acknowledge that
expressing the measurement of alcohol content of breath in terms
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court did not err by admitting the certificate into evidence.
We hold, therefore, that the trial court did not abuse its
discretion by admitting the certificate of analysis into
evidence. The problem remains, however, what is the evidentiary
value of the certificate of analysis showing unexplained results
of ".10%" grams per 210 liters."
We turn to whether the trial court could consider the
results as expressed in the certificate sufficient to apply
the presumption of intoxication in accordance with Code
§ 18.2-269(A)(3). The Commonwealth did not offer evidence to
explain the error in ".10%." Without evidence explaining the
errors, the trial judge could not assume that "%" was simply
inserted by error and that the correct measurement for alcohol
content was .10 grams per 210 liters of the accused's breath.
Accordingly, by failing to determine that the certificate
reflected the correct measurement of the defendant's breath
alcohol content, the trial court erred in applying the statutory
presumption of intoxication under Code § 18.2-269(A)(3) to the
test results. Because the trial court erroneously based its
finding of intoxication upon the statutory presumption, we do not
decide whether the other evidence was sufficient to prove
intoxication. See Williams v. Commonwealth, 10 Va. App. 636,
639, 394 S.E.2d 728, 729 (1990); see also Overbee v.
of "percentage" of grams of alcohol per 210 liters of breath,
rather than the number of grams of alcohol per 210 liters of
breath, makes no sense. The Commonwealth argues that it is
patent that the examiner included a "%" sign because the statute
formerly provided for measuring blood alcohol content only in
terms of percentage of alcohol level in the accused's blood.
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Commonwealth, 227 Va. 238, 243-45, 315 S.E.2d 242, 244-45 (1984);
Brooks, 224 Va. at 315-16, 295 S.E.2d at 804. Therefore, we
reverse the conviction and remand the case to the trial court for
such further action as the Commonwealth may be advised.
Reversed and remanded.
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