Summary
holding that section of statute requiring testing official to possess a valid license to conduct breath tests was substantive such that certificate plainly indicating that license of test administrator had expired was inadmissible
Summary of this case from Woolridge v. ComOpinion
44381 Record No. 812249.
October 15, 1982
Present: Carrico, C.J., Poff, Compton, Thompson, Stephenson, and Russell, JJ.
The admission of an alcohol breath analysis test administered by an unlicensed operator was harmless error, other evidence of appellant's intoxication at the time of his arrest for operating a motor vehicle while under the influence of alcohol in violation of Newport News Ordinance Sec. 26-72 being clear and compelling.
(1) Motor Vehicles Criminal Procedure — Operating Motor Vehicle While Under Influence of Alcohol (Newport News Ordinance Sec. 26-72) — Evidence — Statutory Construction — Chemical Test to Determine Alcoholic Content of Blood (Breath Analysis) [Code Sec. 18.2-268(r)] — Operator Must Have Valid License to Administer Test.
(2) Motor Vehicles — Criminal Procedure — Operating Motor Vehicle While Under Influence of Alcohol (Newport News Ordinance Sec. 26-72) — Evidence — Statutory Construction — Chemical Test to Determine Alcoholic Content of Blood (Breath Analysis) [Code Sec. 18.2-268(s)] — Qualification of Operator Administering Breath Analysis Test Matter of Substance Rather than Procedure and Cannot be Waived.
(3) Motor Vehicles — Criminal Procedure — Operating Motor Vehicle While Under Influence of Alcohol (Newport News Ordinance Sec. 26-72) — Evidence — Certificate of Breath Analysis for Alcohol — Inadmissible When Operator Administering Test not Licensed as Required by Code Sec. 18.2-268(r).
(4) Motor Vehicles — Criminal Procedure — Operating Motor Vehicle While Under Influence of Alcohol (Newport News Ordinance Sec. 26-72) — Evidence — Statutory Construction — Driving Motor Vehicle While Intoxicated (Code Sec. 18.2-266) — Chemical Test to Determine Alcoholic Content of Blood (Breath Analysis) [Code Sec. 18.2-268(i) and (r)] — Guilt or Innocence Determined From All Evidence of Condition at time of Alleged Offense, With or Without Breath Analysis.
(5) Motor Vehicles — Criminal Procedure — Operating Motor Vehicle While Under the Influence of Alcohol (Newport News Ordinance Sec. 26-72) — Evidence — Statutory Construction — Driving a Motor Vehicle While Intoxicated (Code Sec. 18.2-266) — Alcoholic Beverage Control Act, Definitions ("Intoxicated") [Code Sec. 4-2(14)] — Driving Under Influence of Alcohol Same as Driving While Intoxicated, Latter Being Defined in Code Sec. 4-2(14).
(6) Motor Vehicles — Criminal Procedure — Operating Motor Vehicle While Under Influence of Alcohol (Newport News Ordinance Sec. 26-72) — Evidence — Certificate of Breath Analysis for Alcohol — Auxiliary Proof Which May Corroborate Evidence of Objective Symptoms as Described in Code Sec. 4-2(14).
(7) Motor Vehicles — Criminal Procedure — Operating Motor Vehicle While Under Influence of Alcohol (Newport News Ordinance Sec. 26-72) — Evidence — Clear and Compelling that Appellant Intoxicated at Time of Arrest and Erroneous Admission of Certificate of Breath Analysis Harmless.
Appellant was convicted of driving while under the influence of alcohol in violation of Newport News Ordinance Sec. 26-72. The certificate of breath analysis showed the operator's license had expired when the test was given. However, the arresting officer testified that appellant exhibited the physical characteristics of intoxication, such as smelling of alcohol, glassy and red eyes, slow speech and unsteady walk. The appellant failed a variety of sobriety tests. The certificate of breath analysis was admitted over objection of counsel on the ground the purpose of the licensing of the operator was to insure that the operator was properly trained and the particular operator, having once been licensed, was properly trained.
1. Code Sec. 18.2-268(r) requires a chemical test to determine alcohol content of blood to be administered by a person possessing a valid license.
2. The requirement of qualification of the operator administering the test is a matter of substance and not procedure and is not waived by Code Sec. 18.2-268(s).
3. The self-authenticating certificate indicating that the operator's license to administer the chemical test was not in force, the Court erred in admitting the certificate of analysis in evidence.
4. Under Code Sec. 18.2-268(i) and (r) the guilt or innocence of the person accused of operating a motor vehicle while intoxicated, as described in Code Sec. 18.2-266, is to be determined from all the evidence of his condition at the time of the alleged offense, with or without a breath analysis.
5. Operating a motor vehicle while under the influence of alcohol as described in Newport News Ordinance Sec. 26-72 is the same as operating a motor vehicle while intoxicated, intoxication being defined in Code Sec. 4-2(14).
6. The result of a breath analysis for intoxication is auxiliary proof which may tend to corroborate evidence of objective symptoms of intoxication as described in Code Sec. 4-2(14).
7. The testimony leaving no room for reasonable doubt as to appellant's intoxication at the time of his arrest, the evidence being clear and compelling that the appellant was intoxicated, the erroneous admission of the certificate of breath alcohol analysis was harmless.
Appeal from a judgment of the Circuit Court of the City of Newport News. Hon. Douglas M. Smith, judge presiding.
Affirmed.
Louis J. Richman, Jr., for appellant.
Verbena M. Askew, Assistant City Attorney (Robert V. Beale, City Attorney, on brief), for appellee.
Howard Brooks was convicted of operating a motor vehicle while under the influence of alcohol in violation of an ordinance of the City of Newport News (City). Brooks submitted to a post-arrest breath analysis, and the only issues on appeal are (1) the admissibility into evidence of the "Certificate of Breath Alcohol Analysis" and (2) its effect upon his conviction.
Code Sec. 46.1-188 permits localities to enact ordinances adopting by reference certain provisions of the motor vehicle code and of "article 2 (Sec. 18.2-266 et seq.) of chapter 7 of Title 18.2." This was implemented in Newport News by Sec. 26-72 of the 1961 City Code, as amended.
The arresting officer testified that in the early morning hours of April 13, 1981, he observed a vehicle weaving back and forth across the broken white lines between lanes on Jefferson Avenue. After stopping the automobile, the officer stated that Brooks, the driver, had a strong odor of alcohol about him; his eyes were red and glassy; his speech was slow; and he was unsteady on his feet. Results from the sobriety tests revealed that Brooks was unable to perform the "stork test, balance test, or finger-to-nose test." When the officer requested Brooks to count backwards from 35 to 10, Brooks replied "I don't know my letters too well."
The officer arrested Brooks and took him to the police station where D. W. Brown, the breath-test operator, made an analysis of Brooks' breath. Upon completion of the test, Brown filled out a form entitled "Certificate of Breath Alcohol Analysis" certifying, inter alia, that Brooks' alcohol content was 0.11 percent by weight by volume. From the face of the certificate, it appears that Brown's license number 80033227, issued by the Division of Consolidated Laboratory Services, expired on March 19, 1981.
In the statement of facts contained in the record, March 19, 1981, is the alleged expiration date. However, Exhibit #1, the certificate, shows March 15, 1981. The inconsistency is irrelevant.
At a bench trial, Brooks' counsel objected to the introduction into evidence of the certificate on the ground that Brown's license had expired when he administered the breath-analysis test. The trial judge, however, overruled counsel's objection and admitted the certificate, stating that the purpose of the license requirement was to ensure that operators were properly trained, as Brown was. The trial court then convicted Brooks, fined him $200 and costs, and suspended his Virginia driver's permit for six months.
I. Admissibility of the Certificate.
Brooks contends that the breath analysis could be made only by a person possessing a valid license, and that the certificate shows on its face that Brown did not, on April 13, 1981, possess a valid license.
Code Sec. 18.2-268(rl) provides:
Chemical analysis of a person's breath, to be considered valid under the provisions of this section, shall be performed by an individual possessing a valid license to conduct such tests, with a type of equipment and in accordance with the methods approved by the Division. Such breath-testing equipment shall be tested for its accuracy by the Division at least once every six months. [Emphasis supplied.]
The Division is directed to establish a training program for all individuals who are to administer the breath tests, of at least forty hours of instruction in the operation of the breath-test equipment and the administration of such tests. Upon the successful completion of the training program the Division may issue a license to the individual operator indicating that he has completed the course and is authorized to conduct a breath-test analysis.
While the statute does not require the expiration date of the license to be recorded on the certificate of analysis, the form does and thus points up a patent inconsistency with Brown's certification that he possessed a valid license.
The City contends that Code Sec. 18.2-268(s) controls and that the defect is procedural, not substantive, and thus does not prohibit the admissibility of this certificate. This is the conclusion reached by the trial court. We disagree.
Code Sec. 18.2-268(s) provides:
The steps herein set forth relating to the taking, handling, identification, and disposition of blood or breath samples are procedural in nature and not substantive. Substantial compliance therewith shall be deemed to be sufficient. Failure to comply with any one or more of such steps or portions thereof, or a variance in the results of the two blood tests 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 as set forth above with all the evidence in the case, provided that the defendant shall have the right to introduce evidence in his own behalf to show noncompliance with the aforesaid procedure or any part thereof, and that as a result his rights were prejudiced.
The statute requires the test to be administered by an operator with a valid license, and the self-authenticating certificate indicates that Brown's license was invalid. The qualification of the operator is a matter of substance, not procedure, and is not waived by subsection (s). The lower court, therefore, was in error in admitting the certificate into evidence.
II. Was the Erroneous Ruling Fatal to a Conviction?
Code Sec. 18.2-268(i) provides in part:
In any trial for a violation of Sec. 18.2-266 of the Code or of a similar ordinance of any county, city or town, this section shall not otherwise limit the introduction of any relevant evidence bearing upon any question at issue before the court, and the court shall, regardless of the result of the blood or breath test or tests, if any, consider such other relevant evidence of the condition of the accused as shall be admissible in evidence.
Code Sec. 18.2-268(r) provides:
The court or the jury trying the case shall determine the innocence or the guilt of the defendant from all the evidence concerning his condition at the time of the alleged offense.
The statutory mandate is that the guilt or innocence of the accused be determined from all the evidence of his condition at the time of the alleged offense, with or without a breath analysis. In Gardner v. Commonwealth, 195 Va. 945, 954, 81 S.E.2d 614, 619 (1954), we equated "under the influence of alcohol" with intoxication and adopted the statutory definition in Code Sec. 4-2(14). Accord, Clemmer v. Commonwealth, 208 Va. 661, 159 S.E.2d 664 (1968). The result of a breath analysis is but auxiliary proof which may tend to corroborate evidence of the objective symptoms adopted in Gardner.
Code Sec. 4-2(14) provides that "[a]ny person who has drunk enough alcoholic beverages to so affect his manner, disposition, speech, muscular movement, general appearance or behavior, as to be apparent to observation, shall be deemed to be intoxicated."
Under the facts and circumstances of this case, the trial court's erroneous ruling admitting the certificate was not fatal to a conviction. The testimony at the trial clearly showed that there was no room for reasonable doubt about Brooks' actual condition at the time of his arrest. The evidence of his guilt was clear and compelling, and the erroneous ruling of the trial court was harmless. Yager v. Commonwealth, 220 Va. 608, 260 S.E.2d 251 (1979), Rozier v. Commonwealth, 219 Va. 525, 248 S.E.2d 789 (1978), and Goins v. Commonwealth, 218 Va. 285, 237 S.E.2d 136 (1977).
Affirmed.