COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Clements
Argued at Richmond, Virginia
JOHN H. ROLLINS, S/K/A
JOHN HENRY ROLLINS
OPINION BY
v. Record No. 2378-00-2 JUDGE JEAN HARRISON CLEMENTS
OCTOBER 30, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ORANGE COUNTY
Daniel R. Bouton, Judge
Charles W. Bowman (Higginbotham & Bowman,
P.L.C., on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
John H. Rollins was convicted in a bench trial of driving
under the influence of alcohol in violation of Code § 18.2-266,
his fourth such offense within ten years. 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 Rollins' 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.
BACKGROUND
The facts before us are not in dispute. On February 5,
2000, Gordonsville Police Officer John Apperson was on routine
patrol when he received a radio call reporting a Ford Ranger
pickup truck driving erratically on Main Street. Apperson
located the identified Ford Ranger pickup truck and followed it.
He observed it "cross[] the yellow line a couple of times" and
"cross[] over the white line almost striking the guard rail."
Apperson activated his vehicle's emergency lights, and the
pickup truck pulled to the side of the road. Apperson
identified Rollins as the driver of the pickup truck.
When Apperson approached the pickup truck, Rollins rolled
down his window. The officer immediately smelled "a strong odor
of alcoholic beverage." Apperson asked Rollins for his license
and registration, which Rollins provided. When asked how much
he had had to drink, Rollins replied that he had had "two
beers." Apperson told Rollins to get out of the pickup truck.
Upon exiting the pickup truck, Rollins stumbled and had to be
steadied as he walked to the back of the truck. Apperson
observed that Rollins' face was "very red" and his eyes were
"bloodshot and glassy."
Apperson administered four field sobriety tests. When
asked to recite the alphabet, Rollins could not. Likewise, he
failed to successfully perform the "finger-touch" test, the
"one-legged-stand" test, and the "finger-to-nose" test.
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Apperson then gave Rollins a preliminary breath test. Following
the completion of that test, Apperson read Rollins the implied
consent law, placed him under arrest, and drove him to the
Central Virginia Regional Jail.
There, Deputy Duane Washington, of the Orange County
Sheriff's Department, read Rollins the implied consent law,
obtained Rollins' consent, and administered a breath-analysis
test to Rollins using the Intoxilyzer 5000 machine. According
to the machine, Rollins, who had had nothing to eat or drink
between the time he was stopped by Officer Apperson and when he
was given the breath-analysis test at the jail, had a blood
alcohol content of ".18 grams per 210 liters of breath."
At trial, Deputy Washington, who was licensed to conduct
breath-test analyses, explained that, in administering the
breath-analysis test to Rollins, he followed the procedure set
forth in the instruction manual published by the Division of
Forensic Science specifically for the Intoxilyzer 5000 machine.
Washington affirmed that he completed, and the machine
performed, all of the steps exactly as outlined in the manual.
He swiped his operator identification card through the machine's
card reader. Using the machine's keyboard, he entered his name
and information and Rollins' name and information. The machine
automatically performed several internal diagnostic tests on its
own, including a "PROM-check" test and a "circuitry-check" test.
The machine took an "air blank" to determine the alcohol content
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of the surrounding air and ran a "simulator" test with a control
sample. This, according to Washington, is also referred to as a
"validation." The machine took another "air blank" to confirm
the alcohol content of the air in the room. Rollins then blew
as directed into the machine's mouthpiece. The machine took
another "air blank" to reconfirm the alcohol content of the room
air. Finally, Rollins blew again as directed into the machine's
mouthpiece, and the test was concluded. As each step of the
test was completed, Deputy Washington checked the corresponding
number on the Department of Criminal Justice Services, Division
of Forensic Science's operational checklist for the Intoxilyzer
5000.
Following the breath-analysis test, the Intoxilyzer 5000
machine printed the aforementioned result onto a "Department of
Criminal Justice Services, Division of Forensic Science
Certificate of Blood Alcohol Analysis." Deputy Washington
completed the certificate of breath analysis by executing the
certificate's attestation clause, which read:
I certify that the above is an accurate
record of the test conducted; that the test
was conducted with the type of equipment and
in accordance with the methods approved by
the Department of Justice Services, Division
of Forensic Science; that the test was
conducted in accordance with the Division's
specifications; that the equipment upon
which the breath test was conducted has been
tested within the last six months and found
to be accurate; that prior to administration
of the test the accused was advised of his
right to observe the process and see the
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blood alcohol reading on the equipment used
to perform the breath test, and that I
possess a valid license to conduct such
test, given under my hand this 5[th] day of
February, 2000.
At trial, the Commonwealth offered the certificate of
breath analysis for admission into evidence under Code
§ 18.2-268.9. Rollins objected to its admission, arguing that
the Intoxilyzer 5000 machine used to perform the breath-analysis
test had not been properly calibrated in strict compliance with
administrative regulation 1 VAC 30-50-90(C). The trial court
overruled Rollins' objection and admitted the certificate into
evidence, finding that, although the machine had not been
calibrated in compliance with 1 VAC 30-50-90(C), it had been
properly calibrated under 1 VAC 30-50-90(A). Such compliance,
the court concluded, was sufficient because the regulation was
procedural, rather than substantive, in nature. The trial court
subsequently convicted Rollins, who presented no evidence in his
defense, of driving under the influence of alcohol in violation
of Code § 18.2-266. Because it was Rollins' fourth such offense
within ten years, the offense was a felony under Code
§ 18.2-270(C).
ANALYSIS
On appeal, Rollins concedes that, in administering the
subject breath-analysis test, Deputy Washington followed the
procedures set forth in the instruction manual for the
Intoxilyzer 5000 and, thus, complied with 1 VAC 30-50-90(A).
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Rollins contends, however, that the certificate of breath
analysis was improperly admitted by the trial court because no
validation test with a control sample was performed on the
Intoxilyzer 5000 machine immediately following the analysis of
his breath, as specifically required by 1 VAC 30-50-90(C).
Compliance with the regulation, Rollins argues, is mandatory and
Deputy Washington's failure to do so rendered the certificate of
breath analysis inadmissible.
The Commonwealth concedes that Deputy Washington did not
comply with 1 VAC 30-50-90(C). The Commonwealth contends,
however, that, because the breath-test methods set forth by the
Department of Criminal Justice Services, Division of Forensic
Science in subsections (A) and (C) of 1 VAC 30-50-90 were
procedural in nature and not substantive, and because Deputy
Washington substantially complied with those prescribed methods,
the trial court correctly ruled that the certificate of breath
analysis was admissible. We agree with the Commonwealth.
"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."
Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842
(1988). "[A] trial court 'by definition abuses its discretion
when it makes an error of law.'" Shooltz v. Shooltz, 27 Va.
App. 264, 271, 498 S.E.2d 437, 441 (1998) (quoting Koon v.
United States, 518 U.S. 81, 100 (1996)). In determining whether
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the trial court made an error of law, "we review the trial
court's statutory interpretations and legal conclusions de
novo." Timbers v. Commonwealth, 28 Va. App. 187, 193, 503
S.E.2d 233, 236 (1998).
Code § 18.2-268.9 provides that, "[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." As
applicable to this case, the breath-test methods approved by the
Department of Criminal Justice Services, Division of Forensic
Science were set forth in 1 VAC 30-50-90, 1 which provided, in
pertinent part, as follows:
The division approves the following breath
test methods and procedures:
A. All breath test devices shall be
operated in accordance with those sections
of the instructional manual published by the
division that are applicable to the
particular breath test device. Licensees
shall follow any additional instructions or
modifications of instructions published by
the division in supplements to the foregoing
instructional manual.
* * * * * * *
C. The licensee shall verify that the
breath test device is properly calibrated
and in proper working order by conducting a
room air blank analysis prior to analysis of
the breath of the person and by conducting a
1
1 VAC 30-50-90 has since been amended and renumbered as 6
VAC 20-190-110(3).
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validation test with a control sample
immediately following the analysis of the
breath of the person.
Code § 18.2-268.11 provides, in pertinent part:
The 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. 2
(Emphasis and footnote added.)
We conclude, reading Code §§ 18.2-268.9 and 18.2-268.11
together, that the legislature did not intend that strict
compliance with the breath-test methods approved by the
Department of Criminal Justice Services, Division of Forensic
Science be a prerequisite for the admission into evidence of the
results of a breath-analysis test. Substantial compliance with
those methods is sufficient. See Snider v. Commonwealth, 26 Va.
App. 729, 732, 496 S.E.2d 665, 666 (1998). Accordingly, 1 VAC
30-50-20 3 provided:
2
We note, as an aside, that Rollins introduced no evidence
showing that his rights were prejudiced.
3
1 VAC 30-50-20 is now 6 VAC 20-190-20.
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These regulations and the steps set forth
herein relating to the taking, handling,
identification and disposition of breath
samples, the testing of such samples, and
the completion and filing of any form or
record prescribed by these regulations are
procedural in nature and not substantive.
Substantial compliance therewith shall be
deemed sufficient.
The sole remaining issue before us, then, is whether Deputy
Washington substantially complied with the breath-test methods
approved by the Department of Criminal Justice Services,
Division of Forensic Science when he, in conducting the
breath-analysis test on Rollins using the Intoxilyzer 5000,
complied with 1 VAC 30-50-90(A), but not with 1 VAC 30-50-90(C).
We hold that he did.
"[I]n determining the question of substantial compliance,
'a minor, trivial difference can be tolerated whereas a material
difference cannot.'" Snider, 26 Va. App. at 732, 496 S.E.2d at
666 (quoting Akers v. James T. Barnes of Washington, D.C., Inc.,
227 Va. 367, 370, 315 S.E.2d 199, 201 (1984)). Furthermore, as
the Supreme Court noted in Coleman v. Pross, 219 Va. 143, 158,
246 S.E.2d 613, 622 (1978), "[t]he principle of substantial
compliance, which is predicated upon a failure of strict
compliance with applicable requirements, operates to replace the
protective safeguards of specificity with a less exacting
standard of elasticity, in order to achieve a beneficial and
pragmatic result."
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Here, requiring strict compliance with both 1 VAC
30-50-90(A) and 1 VAC 30-50-90(C) would lead to a decidedly
impractical result. In fact, as applied to the Intoxilyzer 5000
machine, 1 VAC 30-50-90(A) and 1 VAC 30-50-90(C) inherently
conflict because an operator cannot strictly comply with both.
The Intoxilyzer 5000 instruction manual, written and published
by the Department of Criminal Justice Services, Division of
Forensic Science specifically to show operators how to obtain
the most reliable and accurate results using the Intoxilyzer
5000 machine, does not provide or allow for a validation test
with a control sample immediately following the breath analysis.
That test, according to the Intoxilyzer 5000 manual, is to be
performed by the machine shortly before the analysis.
Moreover, once the operator conducting the breath-analysis
test keys in the requested information about the subject, the
Intoxilyzer 5000 machine functions automatically. With no
further human intervention, the machine performs several
internal tests — including the validation test — before the
subject blows into the mouthpiece. The automatic nature of the
machine does not permit the operator to deviate from the set
procedure to conduct a validation test after the breath analysis
is performed.
Thus, an operator who, like Deputy Washington, follows the
Intoxilyzer 5000 manual in accordance with subsection (A) of 1
VAC 30-50-90 cannot perform the additional step required by
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subsection (C) of 1 VAC 30-50-90. Furthermore, even if the
operator could somehow override the set procedure and conduct a
validation test immediately after the analysis, that operation
would not be in accordance with the instruction manual, as
required by 1 VAC 30-50-90(A).
Hence, we conclude, upon our review of the record, that to
rule as Rollins suggests we do would lead to absurd consequences
inconsistent with the beneficial and pragmatic result intended
by the legislature. See Branch v. Commonwealth, 14 Va. App.
836, 419 S.E.2d 422 (1992). We further conclude that whether
the validation test is performed shortly before the breath
analysis, as required by the manual, or immediately after the
breath analysis, as required by 1 VAC 30-50-90(C), is a trivial
difference. Each achieves the same purpose of ensuring that the
breath-test machine is "properly calibrated and in proper
working order." 1 VAC 30-50-90(C).
We hold, therefore, that Deputy Washington, 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. Accordingly,
the resulting certificate of breath analysis was admissible as
valid evidence under Code § 18.2-268.9, and the trial court did
not abuse its discretion in admitting it.
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For these reasons, we affirm Rollins' conviction.
Affirmed.
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