Jeremy Deshawn Fitzgerald v. Commonwealth of Virginia , 61 Va. App. 279 ( 2012 )


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  •                                           COURT OF APPEALS OF VIRGINIA
    Present: Judges Kelsey, Petty and Senior Judge Haley
    PUBLISHED
    Argued at Salem, Virginia
    JEREMY DESHAWN FITZGERALD
    OPINION BY
    v.     Record No. 0131-12-3                                           JUDGE WILLIAM G. PETTY
    DECEMBER 11, 2012
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
    Joseph W. Milam, Jr., Judge
    Mark T. Williams (Williams, Morrison, Light & Moreau, on brief),
    for appellant.
    Alice T. Armstrong, Assistant Attorney General II (Kenneth T.
    Cuccinelli, II, Attorney General, on brief), for appellee.
    Jeremy Deshawn Fitzgerald was convicted of driving a motor vehicle while intoxicated,
    first offense, in violation of Code § 18.2-266. On appeal, Fitzgerald assigns several errors to the
    trial court’s admission of two certificates into evidence at trial: the certificate of blood alcohol
    analysis and a certificate of instrument accuracy. Fitzgerald’s first three assignments of error
    challenge the trial court’s admission of the certificate of instrument accuracy on various grounds.
    His fourth assignment of error challenges the trial court’s admission of the certificate of blood
    alcohol analysis on the sole ground that if the certificate of instrument accuracy was improperly
    admitted, then so was the certificate of blood alcohol analysis. For the reasons expressed below,
    we conclude that the certificate of blood alcohol analysis was admissible regardless of any
    alleged error in admitting the certificate of instrument accuracy and that, correspondingly, any
    error in admitting the certificate of instrument accuracy was harmless. Accordingly, we affirm
    the judgment of the trial court.
    I. BACKGROUND
    “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,
    granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,
    
    26 Va. App. 1
    , 11, 
    492 S.E.2d 826
    , 831 (1997) (quoting Martin v. Commonwealth, 
    4 Va. App. 438
    , 443, 
    358 S.E.2d 415
    , 418 (1987)).
    On July 16, 2011, Lieutenant J.W. Smith saw Fitzgerald pull out in front of oncoming
    traffic as Fitzgerald was driving a van. Fitzgerald barely missed hitting another vehicle, and
    Lieutenant Smith pulled him over. When Lieutenant Smith walked up to the van, he smelled an
    odor of alcohol and saw that Fitzgerald’s eyes were bloodshot. Fitzgerald admitted that he had
    recently had a couple of shots of alcohol at a local bar. After administering three field sobriety
    tests, Lieutenant Smith arrested Fitzgerald at 12:15 a.m. for driving under the influence.
    Lieutenant Smith took Fitzgerald to the Danville City Jail, where Sergeant Casey Allen
    conducted a breath test to determine Fitzgerald’s blood alcohol content.
    At trial, the trial court admitted into evidence, over Fitzgerald’s objections, both a
    certificate of instrument accuracy for the breath test equipment 1 and a certificate of blood alcohol
    analysis showing the results of the breath test. The certificate of blood alcohol analysis indicated
    that Fitzgerald’s blood alcohol content was 0.16 at 1:14 a.m. on July 16, 2011. The certificate
    also contained the following attestation, signed by Sergeant Allen:
    1
    In addition to containing the certification date of the equipment, the certificate of
    instrument accuracy also contained the following certification: “The above listed instrument was
    found to meet all requirements for accuracy and performance established by the Department of
    Forensic Science. This certification is valid from the above listed certification date until the
    above listed date for recertification.”
    -2-
    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 Forensic Science; that the test was conducted in accordance with
    the Department’s specifications; 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 16th day of July, 2011.
    The trial court convicted Fitzgerald of driving a motor vehicle while intoxicated, first
    offense. This appeal followed.
    II. ANALYSIS
    This appeal presents us with a question of statutory construction. Fitzgerald argues that
    Code § 18.2-268.9 requires the Commonwealth to introduce evidence affirmatively showing that
    the equipment used to conduct a defendant’s breath test was maintained by the Department of
    Forensic Science (the “Department”) and that the Commonwealth’s failure to properly introduce
    such evidence renders the breath test results inadmissible. We disagree.
    “‘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.’” Bynum v.
    Commonwealth, 
    57 Va. App. 487
    , 490, 
    704 S.E.2d 131
    , 133 (2011) (quoting Gonzales v.
    Commonwealth, 
    45 Va. App. 375
    , 380, 
    611 S.E.2d 616
    , 618 (2005) (en banc)). Of course, “[a]n
    error of law by the trial court is ipso facto an abuse of its discretion.” Id.
    “‘Statutory construction is a question of law which we review de novo on appeal.’”
    Lynchburg Div. of Soc. Servs. v. Cook, 
    276 Va. 465
    , 480, 
    666 S.E.2d 361
    , 368 (2008) (quoting
    Parker v. Warren, 
    273 Va. 20
    , 23, 
    639 S.E.2d 179
    , 181 (2007)). In accordance with
    well-established principles, we will “‘apply the plain language of a statute unless the terms are
    ambiguous.’” Id. (quoting Boynton v. Kilgore, 
    271 Va. 220
    , 227, 
    623 S.E.2d 922
    , 926 (2006)).
    -3-
    “‘[T]he primary objective of statutory construction is to ascertain and give effect to legislative
    intent.’” Commonwealth v. Amerson, 
    281 Va. 414
    , 418, 
    706 S.E.2d 879
    , 882 (2011) (alteration
    in original) (quoting Conger v. Barrett, 
    280 Va. 627
    , 630, 
    702 S.E.2d 117
    , 118 (2010)); see also
    B.P. v. Commonwealth, 
    38 Va. App. 735
    , 739, 
    568 S.E.2d 412
    , 413 (2002) (“We will not place a
    construction upon a statute which leads to an absurd result or one plainly contrary to the
    expressed intent of the General Assembly . . . .”). Indeed,
    “[i]n the construction of statutes, the courts have but one object, to
    which all rules of construction are subservient, and that is to
    ascertain the will of the legislature, the true intent and meaning of
    the statute, which are to be gathered by giving to all the words used
    their plain meaning, and construing all statutes in pari materia in
    such manner as to reconcile, if possible, any discordant feature
    which may exist, and make the body of the laws harmonious and
    just in their operation.”
    Thomas v. Commonwealth, 
    59 Va. App. 496
    , 500, 
    720 S.E.2d 157
    , 159-60 (2012) (alteration in
    original) (quoting Lucy v. Cnty. of Albemarle, 
    258 Va. 118
    , 129-30, 
    516 S.E.2d 480
    , 485
    (1999)). Furthermore, “‘[w]e . . . presume that the legislature chose, with care, the words it used
    when it enacted the relevant statute.’” Seabolt v. Cnty. of Albemarle, 
    283 Va. 717
    , 720, 
    724 S.E.2d 715
    , 717 (2012) (alteration in original) (quoting Addison v. Jurgelsky, 
    281 Va. 205
    , 208,
    
    704 S.E.2d 402
    , 404 (2011)).
    Regarding the admissibility of a certificate of blood alcohol analysis following a breath
    test, Code § 18.2-268.9(B) provides, in pertinent part:
    Any individual conducting a breath test under the provisions of
    § 18.2-268.2 shall issue a certificate which will indicate that the
    test was conducted in accordance with the Department’s
    specifications, the name of the accused, 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, the date and time the sample was taken
    from the accused, the sample’s alcohol content, and the name of
    the person who examined the sample. This certificate, when
    -4-
    attested by the individual conducting the breath test on equipment
    maintained by the Department, shall be admissible in any court as
    evidence of the facts therein stated and of the results of such
    analysis (i) in any criminal proceeding, provided that the
    requirements of subsection A of § 19.2-187.1 have been satisfied
    and the accused has not objected to the admission of the certificate
    pursuant to subsection B of § 19.2-187.1, or (ii) in any civil
    proceeding. Any such certificate of analysis purporting to be
    signed by a person authorized by the Department shall be
    admissible in evidence without proof of seal or signature of the
    person whose name is signed to it.
    The purpose of this language is to specify the foundation the Commonwealth must lay to
    introduce into evidence what would otherwise be considered hearsay—a certificate of blood
    alcohol analysis following a breath test. 2 The statute expressly lists all the facts the certificate
    must indicate to render the certificate admissible. The statute plainly states that a certificate
    “shall be admissible” when properly attested by the person who conducted the breath test. Id.
    This indicates that the intent of the General Assembly in employing this language was to require
    the Commonwealth to introduce evidence showing—by way of a formal attestation—that certain
    requirements regarding the conducting of the breath test were met. Concomitantly, it also
    indicates that these are the only facts the Commonwealth must prove to establish the certificate’s
    admissibility. Indeed, as the Supreme Court has previously observed, “[w]hen the certificate
    contains what the statute requires, the statute makes the certificate self-authenticating for
    purposes of admissibility.” Stroupe v. Commonwealth, 
    215 Va. 243
    , 245, 
    207 S.E.2d 894
    , 896
    (1974).
    Prior to the 2009 amendment, the list of requirements in Code § 18.2-268.9 that the
    certificate had to indicate included the fact that “the equipment on which the breath test was
    2
    Code § 18.2-268.9(A) sets forth the foundation the Commonwealth must establish for
    the results of a breath test to be “considered valid as evidence,” or in other words, the foundation
    for the admissibility of the actual test results. Fitzgerald does not argue that these foundational
    requirements were not met.
    -5-
    conducted has been tested within the past six months and has been found to be accurate.”
    However, in 2009, the General Assembly removed this requirement from the list of facts the
    certificate had to indicate to be admissible. The General Assembly simultaneously added the
    current phrase, “on equipment maintained by the Department,” to the following sentence in the
    statute dictating the admissibility of a certificate that is properly attested. Fitzgerald argues that
    the amended language still requires the Commonwealth to introduce affirmative evidence
    showing that the breath test was conducted on equipment maintained by the Department.
    However, we hold that the amendment to the statute, considered as a whole, indicates the
    opposite intent by the General Assembly.
    “‘[W]hen a statute has been amended, there is a presumption that the General Assembly
    intended to effect a substantive change in the law.’” Thomas, 59 Va. App. at 503, 720 S.E.2d at
    161 (quoting Britt Constr., Inc. v. Magazzine Clean, LLC, 
    271 Va. 58
    , 63, 
    623 S.E.2d 886
    , 888
    (2006)); see also Scott v. Commonwealth, 
    58 Va. App. 35
    , 49, 
    707 S.E.2d 17
    , 24 (2011) (noting
    that “when the legislature amends a particular statute, we normally presume that ‘a change in law
    was intended’” (quoting Wisniewski v. Johnson, 
    223 Va. 141
    , 144, 
    286 S.E.2d 223
    , 225
    (1982))). “Accordingly, we must ‘assume that a statutory amendment is purposeful, rather than
    unnecessary.’” Thomas, 59 Va. App. at 503, 720 S.E.2d at 161 (quoting Britt Constr., Inc., 271
    Va. at 63, 623 S.E.2d at 888).
    The elimination of the express requirement that the certificate indicate that the breath test
    equipment has been tested and found accurate within the past six months demonstrates the
    General Assembly’s intent no longer to require the Commonwealth to introduce evidence
    regarding the maintenance of breath test equipment in order to admit a certificate of analysis into
    -6-
    evidence. The addition of the phrase “on equipment maintained by the Department” in another
    sentence in the statute does not negate this intent.
    The provisions of Code § 18.2-268.11 are relevant at this point. That section provides:
    The steps set forth in §§ 18.2-268.2 through 18.2-268.9
    relating to taking, handling, identifying, and disposing of blood or
    breath samples are procedural and not substantive. Substantial
    compliance shall be sufficient. Failure to comply with any steps or
    portions thereof 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 with all the evidence in the case; however, the
    defendant shall have the right to introduce evidence on his own
    behalf to show noncompliance with the aforesaid procedures or
    any part thereof, and that as a result his rights were prejudiced.
    Code § 18.2-268.11.
    The language in Code § 18.2-268.9 regarding “equipment maintained by the Department”
    does not constitute a requirement that the Commonwealth must affirmatively prove to render a
    certificate admissible as evidence. Rather, it is a procedural circumstance for which a defendant
    may introduce evidence to show noncompliance that has resulted in prejudice to his rights. In
    other words, under the statutory scheme, a certificate is admissible into evidence without an
    affirmative showing by the Commonwealth that the breath test equipment was properly
    maintained by the Department. However, a defendant is free to introduce evidence showing that
    the breath test equipment was not properly maintained by the Department and that this
    noncompliance with proper procedure resulted in prejudice to his rights. The failure of the
    Commonwealth to comply with proper maintenance requirements for breath test equipment does
    not render certificates of blood alcohol analysis inadmissible. Instead, such failure “go[es] to the
    weight of the evidence and shall be considered with all the evidence in the case.” Code
    § 18.2-268.11; see Cutright v. Commonwealth, 
    43 Va. App. 593
    , 600-01, 
    601 S.E.2d 1
    , 4 (2004)
    (noting that “[b]y statute, . . . the legislative remedy for a procedural violation is not suppression
    -7-
    of the evidence, but a full and fair opportunity for both sides to attempt to prove or disprove any
    prejudicial effect of the violation”). 3
    We are guided in our analysis by the Supreme Court’s decision in Stroupe, 
    215 Va. 243
    ,
    
    207 S.E.2d 894
    . In Stroupe, the defendant argued that the Commonwealth had not introduced
    affirmative evidence proving compliance with all the various statutory requirements for breath
    tests and certificates of analysis. Id. at 244-45, 207 S.E.2d at 895-96. Noting that the certificate
    in that case “contained every averment, datum, signature, and attestation specifically required by
    the statute,” id. at 244-45, 207 S.E.2d at 896, the Supreme Court held that “[w]hen the certificate
    contains what the statute requires, the statute makes the certificate self-authenticating for
    purposes of admissibility,” id. at 245, 207 S.E.2d at 896. The Court proceeded to explain:
    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. . . . Even had
    [the defendant] . . . 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.; see also Woolridge v. Commonwealth, 
    29 Va. App. 339
    , 345, 
    512 S.E.2d 153
    , 156 (1999)
    (noting that when a “certificate complie[s] with all the requirements contained in Code
    § 18.2-268.9, . . . the burden [is] on appellant to prove a substantive, rather than merely
    procedural, irregularity sufficient to defeat the certificate’s admissibility”). This is essentially
    the reasoning we have set forth above in response to Fitzgerald’s argument. “Simply put, the
    3
    In ruling on the issue before us regarding foundation for admissibility, we express no
    opinion on the separate issue that could arise in subsequent cases, viz., a challenge to the
    sufficiency of the evidence where a defendant has actually introduced evidence of
    noncompliance with procedural requirements resulting in prejudice to his rights.
    -8-
    statute does not require proof of the accuracy of an individual test as a prerequisite to
    admissibility of the resulting certificate.” Woolridge, 29 Va. App. at 345, 512 S.E.2d at 156.
    Furthermore, the Court in Stroupe noted that “[t]here was evidence on the face of the
    certificate that the test was performed by [a licensed] operator.” 215 Va. at 244, 207 S.E.2d at
    896. The Court held that this “evidence raise[d] the reasonable inference that such operator was
    trained with a [properly approved] machine . . . , in [properly approved] methods . . . , and that
    the same machine and methods were used to conduct the test administered to defendant.” Id.
    Similarly, the certificate in this case contains an attestation “that the test was conducted with the
    type of equipment and in accordance with the methods approved by the Department of Forensic
    Science.” This evidence permits the reasonable inference that the equipment was maintained by
    the Department. Indeed, Fitzgerald introduced no evidence indicating that the equipment had not
    been properly maintained by the Department.
    It is true that Code § 9.1-1101 requires the Department to “[t]est the accuracy of
    equipment used to test the blood alcohol content of breath at least once every six months,” and
    mandates that “[o]nly equipment found to be accurate shall be used to test the blood alcohol
    content of breath.” Code § 9.1-1101(B)(3). However, a plain reading of Code § 18.2-268.9
    indicates that the Commonwealth is not required to introduce affirmative evidence showing the
    Department’s compliance with Code § 9.1-1101(B)(3) before a certificate of blood alcohol
    analysis becomes admissible. Rather, the substantial compliance provisions of Code
    § 18.2-268.11 explained above indicate that the defendant has the burden of producing evidence
    showing noncompliance with procedural requirements like that contained in Code
    § 9.1-1101(B)(3). This is consistent with the general principle that “[t]here is a presumption that
    public officials will perform their duties in accordance with the law.” Bd. of Supervisors v.
    -9-
    Safeco Ins. Co. of Am., 
    226 Va. 329
    , 338, 
    310 S.E.2d 445
    , 450 (1983); see also Mar v.
    Malveaux, 
    60 Va. App. 759
    , 772, 
    732 S.E.2d 733
    , 739 (2012) (“[I]t is ‘presumed that public
    officials will discharge their duties honestly and in accordance with law.’” (quoting Ours
    Properties, Inc. v. Ley, 
    198 Va. 848
    , 851, 
    96 S.E.2d 754
    , 756 (1957))). Thus, for purposes of
    admitting a certificate of analysis into evidence under Code § 18.2-268.9, the Department’s
    compliance with requirements like that prescribed in Code § 9.1-1101(B)(3) is presumed, but the
    defendant has the right to introduce evidence showing noncompliance by the Department that
    prejudiced the defendant’s rights.
    Fitzgerald cites Brooks v. City of Newport News, 
    224 Va. 311
    , 
    295 S.E.2d 801
     (1982), to
    support his argument. In Brooks, the certificate of analysis showed on its face that the breath test
    operator’s license had expired several weeks before he conducted the defendant’s breath test. Id.
    at 313-14, 295 S.E.2d at 802-03. The Supreme Court noted that although “the statute does not
    require the expiration date of the license to be recorded on the certificate of analysis,” the fact
    that it was recorded revealed “a patent inconsistency with [the operator’s] certification that he
    possessed a valid license.” Id. at 314, 295 S.E.2d at 803. Here, however, there was no evidence
    demonstrating noncompliance with the requirements of the statute. Thus, Brooks does not apply
    to the facts of this case.
    “The burden is on the Commonwealth to show that it substantially complied with the
    requirements of the statute.” Snider v. Commonwealth, 
    26 Va. App. 729
    , 732, 
    496 S.E.2d 665
    ,
    666 (1998). “When the certificate contains what the statute requires, the statute makes the
    certificate self-authenticating for purposes of admissibility.” Stroupe, 215 Va. at 245, 207
    S.E.2d at 896. The record here demonstrates that the certificate of analysis contained what Code
    - 10 -
    § 18.2-268.9 requires. Therefore, we hold that the trial court did not commit an error of law and
    thereby abuse its discretion in admitting the certificate into evidence.
    Furthermore, our analysis regarding the admissibility of the certificate of blood alcohol
    analysis is unaffected by the question of whether it was error to admit the certificate of
    instrument accuracy into evidence. Assuming without deciding that the trial court erred in
    admitting the certificate of instrument accuracy, we hold that because proof of the facts in the
    certificate of instrument accuracy was not a prerequisite to the admissibility of the certificate of
    blood alcohol analysis, the trial court did not err in admitting the certificate of blood alcohol
    analysis and the breath test results it contained. In light of this holding, we also hold that any
    error in admitting the certificate of instrument accuracy was harmless on the facts of this case.
    See Atkins v. Commonwealth, 
    272 Va. 144
    , 154, 
    631 S.E.2d 93
    , 98 (2006) (discussing standard
    for non-constitutional harmless error); Lilly v. Commonwealth, 
    258 Va. 548
    , 551, 
    523 S.E.2d 208
    , 209 (1999) (discussing standard for constitutional harmless error). 4
    III. CONCLUSION
    For the foregoing reasons, we affirm Fitzgerald’s conviction.
    Affirmed.
    4
    Fitzgerald alleged both constitutional and non-constitutional errors in the admission of
    the certificate of instrument accuracy. We believe that any error in admitting the certificate of
    instrument accuracy was harmless under either standard.
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