Donald Jeffrey Joseph v. Commonwealth ( 1996 )


Menu:
  •                      COURT OF APPEALS OF VIRGINIA
    Present: Judges Baker, Coleman and Elder
    Argued at Salem, Virginia
    DONALD JEFFREY JOSEPH
    v.           Record No. 0607-95-3
    COMMONWEALTH OF VIRGINIA                  MEMORANDUM OPINION *
    BY JUDGE JOSEPH E. BAKER
    JEFFREY WAYNE HODGES                       DECEMBER 10, 1996
    v.           Record No. 0608-95-3
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF ROANOKE COUNTY
    Kenneth E. Trabue, Judge Designate
    Jonathan S. Kurtin (Lutkins, Shapiro &
    Kurtin, on brief), for appellants.
    Marla Graff Decker, Assistant Attorney
    General (James S. Gilmore, III, Attorney
    General, on brief), for appellee.
    Donald Jeffrey Joseph and Jeffrey Wayne Hodges (appellants)
    were arrested and convicted in bench trials for driving while
    intoxicated in violation of Code § 18.2-266.    The dispositive
    issue in each case is whether the trial court erred by admitting
    into evidence a certificate of breath alcohol analysis that
    purportedly does not contain the date and time each breath sample
    was taken.    Appellants contend that Code § 18.2-268 requires
    that, in order to be admissible without the testimony from the
    person authenticating the test, the certificate must state the
    *
    Pursuant to Code § 17-116.010 this opinion is not
    designated for publication.
    date and time the breath sample was taken from appellants.
    Joseph's appeal presents the additional issue of whether the
    trial court erroneously convicted him of feloniously operating a
    motor vehicle after having been adjudicated an habitual offender.
    Joseph contends that without the certificate as evidence, he was
    wrongfully convicted of the felony.
    I. The Certificate
    Code § 18.2-266 prohibits any person from driving a motor
    vehicle in the Commonwealth "while such person has a blood
    alcohol concentration of 0.08 percent or more by weight by volume
    or 0.08 grams or more per 210 liters of breath as indicated by a
    chemical test administered as provided in this article."    Code
    § 18.2-267 directs that any person suspected of driving in
    violation of Code § 18.2-266 is entitled to have his breath
    analyzed by any of several persons designated therein to
    determine the probable alcohol content of his blood, and that any
    person charged with violation of Code § 18.2-266 or § 18.2-266.1
    or any similar local ordinance "shall then be subject to the
    provisions of §§ 18.2-268.1 through 18.2-268.12, or of a similar
    [local] ordinance."
    Any person who operates a motor vehicle upon a highway of
    this Commonwealth shall be deemed to have consented to have his
    breath tested.   Code § 18.2-268.2.    Code § 18.2-268.9 provides
    that to be considered valid as evidence in a prosecution for
    driving under the influence, a chemical analysis of a person's
    - 2 -
    breath shall be performed only by the individuals described in
    that section and by methods approved by the Department of
    Criminal Justice Services, Division of Forensic Sciences.   In
    relevant part, Code § 18.2-268.9 further provides:
    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
    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.
    The officer making the arrest, or anyone
    with him at the time of the arrest, or anyone
    participating in the arrest of the accused,
    if otherwise qualified to conduct such test
    as provided by this section, may make the
    breath test or analyze the results.
    Code § 18.2-268.11 specifically directs that the steps set
    forth in Code §§ 18.2-268.2 through 18.2-268.9 are procedural,
    not substantive, and further provides:
    Failure to comply with any steps or
    portions thereof, or a variance in the
    results of the two blood tests shall not of
    - 3 -
    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.
    The determinative issue in appellants' cases is whether Code
    § 18.2-268.11 applies to the provisions of Code § 18.2-268.9.      We
    hold that it does.
    Appellants' sole claim is that the certificates of analysis
    are inadmissible as a matter of law because they did not show the
    dates and times the samples were taken.   In all other respects,
    they concede that the certificates complied with the code
    provisions.   The record discloses that a warrant of arrest for
    violation of Code § 18.2-266 was issued against Joseph on
    July 31, 1994 at 1:45 a.m.   The certificate shows that the test
    was "performed on July 31, 1994 at 2:33 a.m."    The warrant was
    served on Joseph at 2:36 a.m.   The record also discloses that a
    warrant of arrest for violation of Code § 18.2-266 was issued
    against Hodges on October 1, 1994 at 3:49 a.m.   The certificate
    shows that the test was performed on October 1, 1994 at 4:14 a.m.
    The warrant was served on Hodges at 4:20 a.m.    At trial,
    appellants submitted the Commonwealth's Division of Forensic
    Sciences' Breath Alcohol Operator Training Manual for the trial
    court's consideration.   That document requires that the breath
    test procedure be substantially contemporaneous with the time the
    sample was taken.    The record confirms compliance with that
    - 4 -
    requirement.
    In each case, notations on the warrants showing when the
    breath tests were "performed" were sufficient to prove when the
    samples were taken.   Accordingly, we hold that in each case the
    record establishes substantial compliance with the Code
    provisions and the trial court did not err when it admitted the
    respective certificates into evidence.
    II. Habitual Offender
    An habitual offender who drives a motor vehicle while the
    revocation of the person's driving privilege remains in effect
    and the person's driving, of itself, endangers the life, limb, or
    property of another, shall be guilty of a felony.   Code
    § 46.2-357.    Joseph contends that the evidence was insufficient
    to prove that his driving endangered the life, limb, or property
    of another and, thus, he did not commit a felony offense.    We
    disagree.
    Viewed in the light most favorable to the Commonwealth and
    granting it all reasonable inferences deducible therefrom,
    Higginbotham v. Commonwealth, 
    216 Va. 349
    , 352, 
    218 S.E.2d 534
    ,
    537 (1975), the evidence reveals that on July 31, 1994, Officer
    Reynolds (Reynolds) of the Roanoke County Police Department saw
    Joseph drive his blue pick-up truck and attempt to enter the flow
    of traffic from a parking lot.    Joseph pulled out in front of an
    oncoming car and accelerated rapidly.    Joseph's actions forced
    the driver of the oncoming car to slam on its brakes and skid off
    - 5 -
    to the right.   Joseph then rapidly accelerated his truck and ran
    it onto the right shoulder of the road.    Although the shoulder
    was not marked by a dividing line, the truck went three-quarters
    of its width off of the travel lane.     Reynolds activated his
    emergency lights, but Joseph ignored them and proceeded forward.
    Reynolds activated his siren.    Joseph waved to Reynolds and
    continued on, stopping his truck in a left-center turn lane about
    one-half mile from where the pursuit began.    Throughout the
    pursuit, Reynolds watched the vehicle weaving within its lane.
    The breathalyzer test showed Joseph's blood alcohol content to
    be 0.10.
    In Travis v. Commonwealth, 
    20 Va. App. 410
    , 
    457 S.E.2d 420
    (1995), we held that evidence of the defendant weaving in his own
    lane and into another was sufficient to find the endangerment
    necessary to support a felony violation of Code § 46.2-357.       Id.
    at 417, 457 S.E.2d at 423.   Here, Joseph cut off another vehicle,
    causing its driver to slam on the brakes and resulting in the car
    going into a skid.   Additionally, Joseph drove his truck off the
    shoulder of the road and was weaving within his lane.    This
    evidence supports the trial court's finding of endangerment.
    For the foregoing reasons, the judgments of the trial court
    are affirmed.
    Affirmed.
    - 6 -
    

Document Info

Docket Number: 0607953

Filed Date: 12/10/1996

Precedential Status: Non-Precedential

Modified Date: 10/30/2014