Rollins v. Com., Record No. 2378-00-2.

• Decision Date: 30 October 2001
• Docket Number: Record No. 2378-00-2.
• Parties: John H. ROLLINS, s/k/a John Henry Rollins v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

554 S.E.2d 99

37 Va. App. 73

John H. ROLLINS, s/k/a John Henry Rollins v. COMMONWEALTH of Virginia.

Record No. 2378-00-2.

Court of Appeals of Virginia, Richmond.

October 30, 2001.

Charles W. Bowman (Higginbotham & Bowman, P.L.C., on brief), Orange, for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, Chief Judge, ELDER and CLEMENTS, JJ.

CLEMENTS, Judge.

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. 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 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 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). 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, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996)). In determining whether 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...