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

• Docket Nº: Record No. 2378-00-2.
• Citation: 37 Va. App. 73, 554 S.E.2d 99
• Case Date: October 30, 2001
• Court: Court of Appeals of Virginia

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.

554 S.E.2d 100

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

554 S.E.2d 101

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,

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