Opinion
Record No. 1768-92-2
January 18, 1994
FROM THE CIRCUIT COURT OF LOUISA COUNTY VANCE M. FRY, JUDGE DESIGNATE.
Michael C. Kildoo (Charles F. Purcell; Purcell Purcell, on brief), for appellant.
Leah A. Darron, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Baker, Barrow and Bray.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Appealing a conviction of driving under the influence of alcohol, the defendant contends that his expert should have been permitted to testify concerning the margin of error inherent in a breathalyzer test and that the trial judge should not have corrected an error in an exhibit after the jury had begun to deliberate. We hold that the trial court did not err in its ruling on these questions.
EXPERT TESTIMONY
"[I]n an appropriate case," a defendant may contest the reliability of a breathalyzer test "by proving . . . that the margin of error of a particular device was in excess of the margin deemed scientifically acceptable. However, merely proving the margin of error in a particular breathalyzer test, without more, does not as a matter of law, negate its reliability."Nelson v. Commonwealth, ___ Va. App. ___, ___, 430 S.E.2d 553, 555 (1993). In this case, the expert witness had not determined how the average ratio of the weight of alcohol per volume of blood to the weight of alcohol per volume of breath used by a breathalyzer differed from the same ratio applicable to this defendant. He also did not offer to show that the reliability of the breathalyzer used in this case varied from any norm. Therefore, the expert's testimony did not attempt to show that the margin of error in this case was in excess of a scientifically acceptable margin, either generally or with specific reference to the defendant. The testimony was, consequently, inadmissible. See id.
CORRECTION OF REGULATIONS
In response to a question from the jury after it had begun deliberations, the trial court advised the jurors that one of a group of regulations on the use of a breathalyzer which had been introduced by the defendant was not in effect at the time of the defendant's arrest. This action was not improper, even though the prosecutor had not objected to the introduction of the regulations.
The trial judge has broad discretion in the supervision of the conduct of a trial, and a decision in this regard will not be disturbed absent a showing of abuse of discretion. O'Dell v. Commonwealth, 234 Va. 672, 703, 364 S.E.2d 491, 509,cert. denied, 488 U.S. 871 (1988). Furthermore, "[a] trial judge has a right, indeed it is his duty, when necessary for the fair, orderly administration of justice, to participate in the trial and facilitate its progress." Skipper v. Commonwealth, 195 Va. 870, 879, 80 S.E.2d 401, 406 (1954). See also Howie v. Commonwealth, 222 Va. 625, 631, 283 S.E.2d 197, 201 (1981) (holding trial judge did not abuse discretion by directly questioning defendant when testifying). Finally, if necessary in a criminal case, "the court shall take judicial notice" of "the law, statutory or otherwise" of any agency of the Commonwealth, and "in taking such notice, shall consult any book, record, register, journal, or other official document or publication purporting to contain, state, or explain such law." Code § 19.2-265.2. Consequently, the trial court did not abuse its discretion in advising the jury of the inapplicability of the regulation.
For these reasons, we affirm the judgment of conviction.
Affirmed.