Anderson v. Commonwealth , 25 Va. App. 26 ( 1997 )

ANNUNZIATA, Judge.

Following a bench trial, appellant, Carl E. Anderson, was convicted of DUI, third offense, and operating a motor vehicle after having been adjudicated an habitual offender. On appeal, he contends the trial court erred in admitting into evidence the certificate of breath analysis and the order adjudicating him an habitual offender. We disagree and affirm his convictions.

I.

The facts are not in dispute. On August 16, 1995, Officer VanLandingham stopped appellant after observing him make an illegal left turn. The officer detected an odor of alcohol about appellant and noticed that his eyes were bloodshot. Appellant admitted that he had consumed at least fifteen beers during the preceding four and one-half hour period. He then performed poorly on field sobriety tests directed by the officer. Appellant failed the heel-to-toe test, twice losing his balance, as well as the one-legged stand; he further stated he was unable to recite the alphabet between the letters F and N. The officer arrested appellant and transported him to the station house where the officer gave appellant a breath analysis test.

Officer VanLandingham testified concerning the testing procedures she followed. She described a self-test that the breath analysis machine runs to assure that no residual alcohol in the machine or in the air affects the test result. None was detected in the present case.

The machine printed a certificate of analysis, which showed appellant’s breath alcohol content to be .13 grams per 210 liters of breath. The certificate further indicated that the breath analysis machine had been tested for accuracy by the Division of Forensic Science on April 19,1995, and the certificate’s attestation clause contained the following statement:

THE EQUIPMENT ON WHICH THE BREATH TEST WAS CONDUCTED HAS BEEN TESTED WITHIN THE PAST SIX MONTHS AND FOUND TO BE ACCURATE.

Officer VanLandingham attested to those statements by. signing the attestation clause. VanLandingham acknowledged that she had no personal knowledge that the machine had been tested for accuracy. The certificate was admitted into evidence over appellant’s objection.

In 1991, the Circuit Court of Campbell County entered an order adjudicating appellant an habitual offender and directing that he “shall not operate a motor vehicle on or upon the highways of the Commonwealth of Virginia.” The order was admitted into evidence over appellant’s objection.

II.

Code § 18.2-268.9¹ requires that the breath analysis certificate indicate, inter alia, that “the equipment on which the breath test was conducted has been tested within the past six months and has been found to be accurate----” Admissibility of the certificate as evidence of the facts therein stated is premised on attestation “by the individual conducting the breath test.” That is, under the statute only the test-taker may properly attest to the statements contained in the certificate.

Among the other statutory requisites, the certificate in the present case plainly “indicates” that the breath analysis machine was tested and found to be accurate within the proper time frame. Pursuant to the statute, Officer VanLandingham, the test-taker, attested to what the certificate indicated, and the court admitted the certificate into evidence.

Appellant contends that the admission of the certificate was error, however, because VanLandingham had no personal knowledge of the machine’s performance testing. VanLandingham’s attestation, he contends, is therefore a nullity, rendering the certificate inadmissible. We disagree.

The Commonwealth is not required to establish a foundation for the statements contained in the certificate. Stroupe v. Commonwealth, 215 Va. 243, 245, 207 S.E.2d 894, 896 (1974).

Manifestly, the General Assembly intended to spare the Commonwealth the prosecutorial and financial burdens of-calling two public officers to testify in every drunk driving case involving breathalyzer test evidence. When the certificate contains what the statute requires, the statute makes the certificate self-authenticating for purposes of admissibility. Once the certificate is admitted, the statute makes it evidence of the alcoholic content of the blood to be considered with all other evidence in the case. But the statute does not make the certificate conclusive evidence of the statutory regularity of the test. With respect to regularity of the test, the statute affords the defendant the right to prove noncompliance with test procedures. Here, defendant had the right to subpoena the test operator for that purpose. He chose not to exercise that right. Even had he called the test operator and proved some prejudicial irregularity in test procedures, such proof would not have defeated admissibility of the certificate but only affected its weight as evidence of the alcoholic content of his blood.

Id. Officer VanLandingham’s personal knowledge of the required test for accuracy affected, if anything, the weight of the certificate as evidence, not its admissibility.

Appellant argues that Stroupe is distinguishable from the present case because the defendant in Stroupe conceded that the certificate contained every “averment, datum, signature, and attestation specifically required by the statute.” 215 Va. at 244-45, 207 S.E.2d at 896. Appellant’s proffered distinction of Stroupe is without meaning. Appellant does not, nor could not, contend that the certificate lacked an attestation by Officer VanLandingham.² Rather, appellant’s contention is that the officer’s attestation is not sufficient to establish the admissibility of the certificate because she had no personal knowledge of the fact to which she attested. In other words, appellant argues that no foundation existed for the statements contained in the certificate, exactly the issue disposed of by Stroupe.

In a further attempt to distinguish Stroupe, appellant argues that his position would require only the attestor of the certificate to have personal knowledge of the statements it contained, not the test-taker. Appellant’s position is not well-taken. Because, under the statute, the test-taker must attest to the certificate, appellant’s position leads to the ineluctable result that the test-taker would have to calibrate the machine personally or to witness its calibration and be able to testify that it was performed accurately. Such a result would be plainly contrary to the intent of the legislature in enacting the statute, see Stroupe, 215 Va. at 245, 207 S.E.2d at 896, and we decline to accept it. See Branch v. Commonwealth, 14 Va.App. 836, 839, 419 S.E.2d 422, 424 (1992) (“[T]he plain, obvious, and rational meaning of a statute is always preferred to any curious, narrow or strained construction____”).

Accordingly, we find no error in the trial court’s decision to admit the certificate of breath analysis.

III.

Appellant contends the order adjudicating him an habitual offender is void because the circuit court lacked jurisdiction to enter it. Code § 46.2-356 provides that

[n]o license to drive motor vehicles in Virginia shall be issued to an habitual offender (i) for a period of ten years from the date of any final order of a court ... finding the person to be an habitual offender and (ii) until the privilege of the person to drive a motor vehicle in the Commonwealth has been restored by an order of a court of record entered in a proceeding as provided in this article.

Appellant contends that the failure of the court which adjudicated him an habitual offender to limit the prohibition on his privilege to drive for a period of ten years renders the order void. Accordingly, he argues, the trial court erred in admitting the habitual offender order into evidence.

Code § 46.2-356 is not a jurisdictional limitation on the circuit courts. See Manning v. Commonwealth, 22 Va.App. 252, 255-56, 468 S.E.2d 705, 707 (1996); Davis v. Commonwealth, 12 Va.App. 246, 248, 402 S.E.2d 711, 712 (1991). Rather, it directs the Department of Motor Vehicles in the issuance of driver’s licenses to individuals found to be habitual offenders. Accordingly, we find no merit in appellant’s argument that the order adjudicating him an habitual offender is void.

The decision of the trial court is accordingly affirmed.

Affirmed.

1 . Code § 18.2-268.9 provides in part:

To be capable of being considered valid as evidence in a prosecution wider § 18.2-266 or § 18.2-266.1, chemical analysis of a person’s breath shall be performed by an individual possessing a valid license to conduct such tests, with a type of equipment and in accordance with methods approved by the Department of Criminal Justice Services, Division of Forensic Science. The Division shall test the accuracy of the breath-testing equipment at least once every six months.

Any individual conducting a breath test under the provisions of § 18.2-268.2 shall issue a certificate which will indicate that the test weis conducted in accordance with the Division's specifications, [and that] the equipment on which the breath test was conducted has been tested within the past six months and hEis been found to be accurate ____This certificate, when attested by the individual conducting the breath test, shall be admissible in any court in any criminEd or civil proceeding as evidence of the facts therein stated and of the results of such EWEilysis.

2 . Compare Frere v. Commonwealth, 19 Va.App. 460, 452 S.E.2d 682 (1995), upon which appellant would like to rely, in which the certificate in question contained no attestation clause.