Williw Albert Price v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Fitzpatrick
Argued at Richmond, Virginia
WILLIE ALBERT PRICE
MEMORANDUM OPINION * BY
v. Record No. 0460-95-2 JUDGE JAMES W. BENTON, JR.
MAY 28, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
Charles L. McCormick, III, Judge
Roxie O. Rosemond for appellant.
Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Willie Albert Price appeals from a conviction of driving
under the influence of alcohol in violation of Code
§ 18.2-266(ii). He contends that the trial judge erred in
admitting a certificate of breath analysis and a deputy sheriff's
testimony regarding the test procedure. For the reasons that
follow, we conclude that the trial judge did not err.
I.
Shortly before 11:30 p.m., several deputy sheriffs saw Price
drive through an intersection after failing to heed a stop sign.
Before stopping Price, they observed him driving on the wrong
side of the road and weaving across the travel lanes. After
Price stopped and exited his vehicle, he walked unsteadily. The
deputies arrested Price for driving under the influence of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
alcohol. Price elected to take a breathalyzer test.
Over objection of Price's counsel, Deputy Sheriff Todd
Gordon testified at trial that he administered the breath test
and took notes throughout the procedure. He testified that he
started the test with an observation period at 11:45 p.m.,
prepared and tested the machine, and gave Price the breath test
at 12:08 a.m. The machine recorded Price's blood alcohol content
as .10.
The deputy sheriff also testified that he prepared the
certificate of analysis, gave a copy to Price, and then took
Price to a jail cell. Approximately twenty-five minutes after
completing the certificate, the deputy sheriff realized that he
failed to indicate on the certificate the time of the test.
After ascertaining from his notes the time that he conducted the
test, the deputy sheriff entered the time on the copies of the
certificate he retained. He did not notify Price of the omission
or enter the time of the test on Price's copy.
Price's counsel objected to the introduction of the
certificate in evidence because the time had not been completed
on Price's copy of the certificate. His counsel also objected to
the introduction of the deputy sheriff's notes. The trial judge
admitted both as evidence. At the conclusion of all the
evidence, the trial judge found the evidence sufficient to prove
beyond a reasonable doubt that Price drove under the influence of
alcohol in violation of Code § 18.2-266(ii).
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II.
"Evidence that tends to establish a fact at issue is
relevant and material and, therefore, admissible, if its
probative value is not outweighed by any prejudicial effect."
Wilkins v. Commonwealth, 18 Va. App. 293, 297, 443 S.E.2d 440,
443 (1994). The trial judge must balance the competing
considerations. Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d
820, 823 (1986). The deputy sheriff's testimony proved the
circumstances surrounding the test and tended to resolve a
disputed issue concerning the certificate of analysis. Thus, the
testimony was relevant and material. Furthermore, based upon the
evidence in the record, the probative value of the testimony
outweighed any incidental prejudice to Price. Therefore, the
trial judge did not err in admitting the deputy sheriff's
testimony.
Code § 18.2-268.9 creates an exception to the hearsay rule
and permits a certificate of breath analysis to be admitted in
evidence. In pertinent part, the statute states as follows:
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
Division's specifications, the equipment on
which the breath test was conducted has been
tested within the past six months and has
been found to be accurate, 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
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examined the sample. This certificate, when
attested by the individual conducting the
breath test, shall be admissible in any court
in any criminal or civil proceeding as
evidence of the facts therein stated and of
the results of such analysis. Any such
certificate of analysis purporting to be
signed by a person authorized by the Division
shall be admissible in evidence without proof
of seal or signature of the person whose name
is signed to it. A copy of the certificate
shall be promptly delivered to the accused.
Code § 18.2-268.9.
In addition, Code § 18.2-268.11 provides as follows:
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, 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 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
(Emphasis added).
Through testimony of the deputy sheriff, the Commonwealth
sought to explain an omission on the certificate. Although the
certificate that the deputy sheriff gave to Price did not specify
the time Price took the test, the deputy sheriff testified as to
the time and the events that occurred during and after the test.
His testimony proved that the notes he made contemporaneously
with the test contained the time the breath sample was taken.
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This evidence proved substantial compliance with the requirements
of Code § 18.2-268.9.
Furthermore, the omission and the deputy sheriff's
explanation "go to the weight of the evidence and shall be
considered with all the evidence in the case." Code
§ 18.2-268.11; Artis v. City of Suffolk, 19 Va. App. 168, 171,
450 S.E.2d 165, 167 (1994). No evidence tended to prove that
Price suffered prejudice as a result of the omission of the time
on his copy of the certificate. Accordingly, we hold that the
trial judge did not err in admitting the certificate of analysis
and the deputy sheriff's notes, and we affirm the judgment order.
Affirmed.
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