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. 
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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.