Home / Fulltext Opinions / Virginia Court of Appeals / ANDERSON v. COMMONWEALTH OF VIRGINIA

ANDERSON v. COMMONWEALTH OF VIRGINIA


ANDERSON v. COMMONWEALTH
OF VIRGINIA


JUNE 17, 1997
Record No. 2704-95-2

CARL EDWARD ANDERSON

v.

COMMONWEALTH OF VIRGINIA

OPINION BY JUDGE ROSEMARIE ANNUNZIATA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Thomas N. Nance, Judge
Present: Judges Benton, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia

Cullen D. Seltzer, Assistant Public Defender (David J. Johnson,
Public Defender, on briefs), for appellant.

Steven A. Witmer, Assistant Attorney General (James S. Gilmore,
III, Attorney General, on brief), for appellee.


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 ? 18.2-268.9[1]
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.

Benton, J., concurring in part and dissenting in part.

I agree with the majority’s conclusion that the order
adjudicating Carl E. Anderson an habitual offender is not void.
However, I would hold that the trial judge erred in admitting the
certificate of Anderson’s breath test analysis into the evidence.
Accordingly, I would reverse Anderson’s DUI conviction.

The admissibility of a certificate of analysis in a
prosecution for a violation of Code ? 18.2-266 is controlled by
Code ? 18.2-268.9,
which provides in relevant part as follows:

Any individual conducting a breath test under the
provisions of [Code] ?
18.2-268.2 shall issue a certificate which will indicate 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 . . . . This certificate, when attested by
the individual conducting the breath test, shall be
admissible
. . . .

Id. (emphasis added). A proper attestation by the
individual who conducted the breath test is required before the
certificate can be admitted under Code ? 18.2-268.9 as an exception
to the rule against hearsay. Cf. Gray v. Commonwealth,
220 Va. 943, 945, 265 S.E.2d 705, 706 (1980); Frere v.
Commonwealth
, 19 Va. App. 460, 465, 452 S.E.2d 682, 686
(1995) ("[I]n order to be admissible as an exception to the
hearsay rule, a certificate introduced under [a similar statute] must bear the examiner’s signature as part of an attestation
clause included on the certificate."). Thus, the validity of
the attestation affects not just the weight of the evidence, but
its admissibility. Id.

Anderson was tested on August 16, 1995. Officer Carla
VanLandingham, the individual who conducted the breathalyzer test
and signed the certificate, testified that she had not tested the
breathalyzer machine because she was "not allowed access to
that." The certificate, which was printed by the
breathalyzer machine, stated that the machine "was tested
for accuracy" on April 19, 1995. However, when Officer
VanLandingham was asked on cross-examination, "You don’t
have any personal knowledge that [the test was performed],"
she answered, "I wasn’t there when it was done, that is
correct." Thus, the sole basis for Officer VanLandingham’s
testimony that the machine had been tested within the last six
months was the report given by the machine itself.

"The preparer’s signature on an attestation clause . . .
serve[s] the purpose of officially certifying the genuineness and
accuracy of the certificate’s contents, a result that a mere
signature cannot achieve." Frere, 19 Va. App. at 465,
452 S.E.2d at 686. Indeed, the plain meaning of the word,
"attest," is "[t]o affirm to be correct." The
American Heritage Dictionary
140 (2d ed. 1991). Officer
VanLandingham’s testimony proved that she did not have personal
knowledge that the machine had been tested other than her
knowledge gained from the report given by the machine.

When a witness A on the stand testifies, "B told me that
event X occurred," . . . [h]e may be regarded as asserting the
event upon his own credit, i.e.
, as a fact to be believed
because he asserts that he knows it. But when it thus appears
that his assertion is not based on personal observation of event
X, his testimony to that event is rejected, because he is not
qualified by proper sources of knowledge to speak to it. This
involves a general principle of testimonial knowledge

. . . .

5 John Henry Wigmore, Wigmore on Evidence ? 1361 (James H. Chadbourn
rev. 1974).

When Officer VanLandingham testified that she made the
attestation because the machine "told" her that it had
been tested for accuracy, she revealed that her attestation was
based merely upon the machine’s report and not her own personal
observation. Thus, Officer VanLandingham was not competent to
attest that the machine had been tested because she was "not
qualified . . . to speak to" the matter. Id. Simply
put, her attestation was invalid.

Moreover, the machine’s report did not even state that the
machine was found to be accurate.[3]
Because Officer VanLandingham did not have independent personal
knowledge that the equipment had been tested and clearly had no
basis to conclude that the machine had been found to be accurate,
I would hold that the certificate was not properly attested as
required by Code ?
18.2-268.9. Thus, I would hold that the trial judge improperly
admitted the certificate into the evidence.

The majority states that "[Anderson] argues that there
was no foundation for the statements contained in the
certificate, exactly the issue disposed of by Stroupe."
The majority misses the distinction between this case and Stroupe
v. Commonwealth
, 215 Va. 243, 207 S.E.2d 894 (1974). In Stroupe,
the defendant "conced[ed] that the certificate contained
every . . . attestation specifically required by the
statute" but "argue[d] that [the attestations] were
simple conclusions and that the certificate was inadmissible
until the Commonwealth had called the test operator to prove the
foundation for the conclusions
." Id. at 244-45,
207 S.E.2d at 896 (emphasis added). No evidence or argument in Stroupe
challenged the validity of the attestation. See id.
Rather, Stroupe argued that, in addition to meeting the statutory
attestation requirements, the Commonwealth also was required to
prove by independent evidence a foundation for the conclusions
contained in the certificate. See id. at 245, 207
S.E.2d at 896. The Supreme Court held that the General Assembly
specifically intended to "spare the Commonwealth [that] . .
. burden[]." Id.

Anderson, however, disputes the validity of the attestation.
The testimony of Officer VanLandingham showed that the
attestation she made was not based upon her own knowledge.
Anderson does not argue that the Commonwealth should be required,
in every case, to prove by independent evidence the foundation
for the statements in the certificate. Rather, Anderson argues
that where, as here, the evidence proves that the attestation was
not based upon the maker’s own knowledge and is thus "a mere
signature," Frere, 19 Va. App. at 465, 452 S.E.2d at
686, the attestation fails to meet the requirements of Code ? 18.2-268.9 and the
certificate is inadmissible. The difference between Anderson’s
argument and Stroupe’s argument is substantive, not merely
semantic.

Finally, the majority asserts that requiring the individual
who makes the attestation to obtain personal knowledge that the
machine has been tested and found to be accurate within the past
six months would conflict with the intent of the General
Assembly. I disagree. "[T]he 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." Stroupe,
215 Va. at 245, 207 S.E.2d at 896 (emphasis added). The General
Assembly did not intend to spare the officer who conducts the
test the burden of having personal knowledge that the machine was
tested and found to be accurate within the last six months. I
find no evidence that the General Assembly intended to dispense
with the requirement that the maker of the attestation have
personal knowledge that the facts to which the maker attests are
true.

For these reasons, I dissent. I would reverse the conviction
and remand for a new trial.

 

 

FOOTNOTES:

[1]
Code ? 18.2-268.9
provides in part:

To be capable of being considered valid as evidence in a
prosecution under ?
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 was 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 has been found to be accurate . . . . 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.

[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.

[3]
No evidence proved that when the machine was tested for accuracy
by the Division of Forensic Science on April 19, 1995 it was
found accurate.

The certificate contains the following recitals:

DATE TEST CONDUCTED WED AUG. 16, 1995

WAS TESTED FOR ACCURACY
BY THE DIVISION OF FORENSIC
SCIENCE ON WED APR. 19, 1995

Officer VanLandingham’s attestation clause is the place
that contains the boiler plate statement "that the equipment
. . . has been tested within the past six months and found to be
accurate." However, that attestation was worthless because
Officer VanLandingham testified that "[she] wasn’t there
when it was done." She had no basis in fact to make that
attestation. Furthermore, nothing in the boiler plate language of
the attestation clause states that when the machine was tested on
April 19, 1995, it was accurate.

 

Scroll To Top