Ricky Mason Durrette v. County of Spotsylvania , 22 Va. App. 122 ( 1996 )


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  •                   COURT OF APPEALS OF VIRGINIA
    Present: Judges Baker, Coleman and Elder
    Argued at Richmond, Virginia
    RICKY MASON DURRETTE
    OPINION BY
    v.        Record No. 0541-95-2              JUDGE LARRY G. ELDER
    MARCH 19, 1996
    COUNTY OF SPOTSYLVANIA
    FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
    J. Peyton Farmer, Judge
    Benjamin H. Woodbridge, Jr. (Woodbridge &
    Reamy, on brief), for appellant.
    Stuart C. Sullivan, III, Assistant
    Commonwealth's Attorney, for appellee.
    Ricky Mason Durrette (appellant) appeals his conviction for
    driving under the influence of alcohol in violation of
    Spotsylvania County Code § 12-86 and Virginia Code § 18.2-266.
    Appellant contends that the trial court erred in allowing into
    evidence the Division of Forensic Science's certificate of
    analysis establishing his blood alcohol content, where such
    certificate was attested by a "division designated
    representative" instead of by the Division Director.   Because the
    trial court did not err, we affirm the conviction.
    I.
    FACTS
    At approximately 3:00 p.m. on October 26, 1994, appellant's
    pickup truck struck Spotsylvania Deputy Sheriff Joseph Cagnina's
    patrol car head on.    Deputy Sheriff E. E. Crawford was dispatched
    to the accident scene and detected an odor of alcohol coming from
    appellant's person.   Appellant told Crawford he had consumed "a
    few drinks with co-workers" and some bourbon prior to the
    collision.   Police arrested appellant for driving under the
    influence of alcohol.    A blood test, taken after police secured
    appellant's informed consent, revealed that his blood alcohol
    level was .12 percent.
    At trial, appellant objected to the introduction of the
    blood test certificate, asserting that it was not properly
    attested by the Division Director or an employee to whom the
    Director delegated this duty.    The Division's certificate of
    analysis was signed by R. D. Cook, "a division employee," who was
    also a "division designated representative," as noted directly
    underneath the signature block. 1   The trial court, sitting
    without a jury, overruled the objection and found appellant
    guilty of driving under the influence of alcohol.
    II.
    PROPER DELEGATION AND ATTESTATION
    Code § 18.2-268.7 states:
    Upon receipt of a blood sample
    1
    The certificate's signature block reads:
    TESTE __________________________________________________________
    (Division Director)     (Division Designated Representative)
    A DIVISION EMPLOYEE
    R. D. Cook's signature appears on the line marked "TESTE,"
    and "Division Designated Representative" is circled.
    -2-
    forwarded to the Division for analysis
    pursuant to § 18.2-268.6, the Division shall
    have it examined for its alcohol or drug or
    both alcohol and drug content and the
    Director shall execute a certificate of
    analysis indicating the name of the accused;
    the date, time and by whom the blood sample
    was received and examined; a statement that
    the seal on the vial had not been broken or
    otherwise tampered with; a statement that the
    container and vial were provided by the
    Division and that the vial was one to which
    the completed withdrawal certificate was
    attached; and a statement of the sample's
    alcohol or drug or both alcohol and drug
    content. The Director shall remove the
    withdrawal certificate from the vial, attach
    it to the certificate of analysis and state
    in the certificate of analysis that it was so
    removed and attached. The certificate of
    analysis with the withdrawal certificate
    shall be returned to the clerk of the court
    in which the charge will be heard. . . .
    When a blood sample taken in accordance
    with the provisions of §§ 18.2-268.2 through
    18.2-268.6 is forwarded for analysis to the
    Division, a report of the test results shall
    be filed in that office. Upon proper
    identification of the certificate of
    withdrawal, the certificate of analysis, with
    the withdrawal certificate attached, shall,
    when attested by the Director, 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
    . . . .
    *   *   *   *     *   *    *
    The Director may delegate or assign
    these duties to an employee of the Division
    of Forensic Science.
    (Emphasis added).
    Appellant asserts that in order for the certificate to meet
    the statutory requirements as an exception to the hearsay rule,
    -3-
    the certificate, on its face, must establish that the Director
    delegated his or her duties to the employee signing the
    certificate's attestation clause.     Appellant argues that in this
    case, the certificate contains no information that R. D. Cook was
    an employee to whom the Director delegated the duties imposed by
    Code § 18.2-268.7.   We disagree and hold that because the
    certificate complies with Code § 18.2-268.7, the trial court did
    not err in allowing the certificate into evidence.
    As the Commonwealth contends, the Supreme Court's decision
    in Hurley v. Charles, 
    112 Va. 706
    , 
    72 S.E. 689
     (1911) instructs
    our analysis.
    The question before the Court in Hurley was
    whether a will had been properly certified.
    The will had been admitted to probate in the
    county court of Tazewell County, and the
    certificate of probate, attested by "A.B.
    Buchanan, Deputy Clerk for S.M. Graham, Clerk
    of the Circuit Court of Tazewell County,
    Virginia" was found to be in proper form and
    sufficient. The certificate accompanying the
    actual will, however, contained only the
    following: "A.B. Buchanan, D. Clerk." The
    Supreme Court concluded that the will had
    been properly certified because the two
    documents, when read together, met the
    requirements of Code § 3334. In reaching
    this conclusion, the court stated: "[U]nder
    these circumstances, it would be technical in
    the extreme to reverse the judgment of the
    circuit court when it plainly can be gathered
    from the certificate of probate and
    attestation of the copy of the will that A.B.
    Buchanan is the deputy clerk of Tazewell
    county, authorized by law to act in place of
    his principal." Id. at 710, 72 S.E. at
    [690-91].
    Carroll v. Commonwealth, 
    10 Va. App. 686
    , 689-90, 
    396 S.E.2d 137
    ,
    -4-
    139-40 (1990)(emphasis added).
    In Hurley, the Court found that sufficient indicia proved
    the signator was the deputy clerk authorized to act on behalf of
    the clerk.   See also Taylor v. Maritime Overseas Corp., 
    224 Va. 562
    , 
    299 S.E.2d 340
     (1983)(holding documents introduced into
    evidence were not properly certified where nothing showed that
    the certifying officer was the documents' custodian); Morgan v.
    Haley, 
    107 Va. 331
    , 
    58 S.E. 564
     (1907)(holding a document would
    clearly be valid where the certificate stated that the person
    making it was clerk of the court, stated in whose office the deed
    was recorded, or used initials to show that fact); Carroll, supra
    (holding that the trial court's order was not properly
    authenticated and certified as required by statute, where the
    order itself contained no evidence that the signator was
    authorized to act in the place of the clerk of court).
    In this case, none of the problems posed in the cases cited
    above are presented.   The Division's certificate of analysis was
    signed by R. D. Cook, "a division employee," who was also a
    "division designated representative," as noted directly
    underneath the signature block.    Unlike Carroll, the certificate
    of analysis, on its face, reveals that R. D. Cook is not only "a
    division employee," but also was authorized as a "designated
    representative" for the Division.       Although a more artful
    drafting of the certificate's attestation clause would have
    better satisfied Code § 18.2-268.7's directives, the language
    -5-
    contained underneath the signature block was nevertheless
    satisfactory in that regard.
    For the foregoing reasons, we affirm appellant's conviction.
    Affirmed.
    -6-
    

Document Info

Docket Number: 0541952

Citation Numbers: 22 Va. App. 122, 468 S.E.2d 128, 1996 Va. App. LEXIS 235

Judges: Baker, Coleman, Elder

Filed Date: 3/19/1996

Precedential Status: Precedential

Modified Date: 11/15/2024