COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Felton Argued at Chesapeake, Virginia

DONALD E. PEARSON OPINION BY v. Record No. 0225-03-1 JUDGEJEAN HARRISON CLEMENTS JUNE 8, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF YORK COUNTY N. Prentis Smiley, Jr., Judge (Patrick D. Kelley, on brief), for appellant. Appellant submitting on brief. Kathleen B. Martin, Assistant Attorney General (Je rry W. Kilgore, Attorney General, on brief), for appellee.

Donald E. Pearson was convicte d in a bench trial of driving under the influence of alcohol, second offense, in violat ion of Code § 18.2-266. On appeal, he contends the trial court erred in admitting a certificate of bl ood analysis because, in having him take a blood test rather than a breath test, the arresting officer failed to comply with Virginia’s implied co nsent law. Findi ng no error, we affirm Pearson’s conviction.
I. BACKGROUND In accordance with familiar principles of appellate review, we “state the evidence presented at trial in the light mo st favorable to the Comm onwealth, the prevailing pa rty below.” Johnson v. Commonwealth , 259 Va. 654, 662, 529 S.E. 2d 769, 773 (2000). As relevant to this appeal, the evidence proved that, on August 17, 2002, at approximately 8:07 p.m., Sergeant H.A. Nealy of the Virginia State Police saw Pearso n drive into a Mobile gas stat ion in York County. Nealy approached Pearson and observed that Pearson’s sp eech was slightly slurre d and that there was a- 2 - strong odor of alcohol coming fr om Pearson’s person after he exite d his vehicle. Pearson’s eyes appeared “glassy, watery and bloodshot,” and his co mplexion was flushed. Pearson swayed slightly and was argumentative and “unf ocused” as he talked to Nealy. Pearson admitt ed to the officer that he had consumed three be ers over the past two hours at Pizzeria Uno. He also told Nealy he had eaten some chili earlier in the day at Chili’s, which had given him in digestion. After Pearson failed several field sobriety tests, Nealy arrested him at 8:29 p.m. for driving under the influence of alcohol. Nealy advised Pearson of his rights under Virg inia’s implied consent law. Nealy then transported Pearson to the Virginia Peninsula Re gional Jail, where he inte nded to administer a breath alcohol test to him. In preparation for administering the breath al cohol test, Nealy, “a licensed breath alcohol operator” of the Intoxily zer 5000 breath analysis machine, in spected Pearson’s mouth and, finding no foreign objects, began the requisite twenty-minute observation period at 9: 02 p.m. After twenty minutes passed, Nealy, following standard procedure, started th e Intoxilyzer 5000 and, after determining the machine was working properly, entered the necessary id entifying information obtained from Pearson. At 9:36 p.m., immediately before administering the breath test to Pearson, Nealy asked Pearson if he had burped or belched, and Pearson responded affirmatively. Nealy explained at trial that, although he had not seen or heard Pearson burp duri ng the observation period, he was required, before obtaining a breath sample from him, to ask whether he had burped, because not all burps are susceptible to observation by the operator. Nealy then began a new twenty -minute observation pe riod. He told P earson to tell him immediately if he burped again, explaining that burping “could affect his results and create an invalid sample.” At 9:37 p.m., Pearson informed Nealy that he had burped again. Nealy began another twenty-minute observation pe riod and once more to ld Pearson to let hi m know if he burped again. At 9:38 p.m., Pearson info rmed Nealy that he had burped agai n and told the officer that he- 3 - was “having a tough time” with the chili he ha d eaten earlier. At tria l, Nealy explained that, although he did not observe Pearson burp or belc h, he relied upon Pearson’ s voluntary admissions that he had done so. No evidence was presented to show that Nealy believed Pearson’s actions were deliberate attempts to impede th e administration of the test or that Pearson was otherwise uncooperative. Seeking advisement as to P earson’s status under the impl ied consent law, Nealy took Pearson to see a magistrate. After a brief discu ssion with the magistrate , Nealy took Pearson to Williamsburg Community Hospital for a blood test . A registered nurse to ok samples of Pearson’s blood at approximately 10:38 p.m. According to the Department of Criminal Justice Services, Division of Forensic Scie nce certificate of analys is introduced by the Co mmonwealth at trial, an analysis of the blood drawn fr om Pearson revealed he had a blood alcohol content of 0.16%. Pearson argued at trial that the results of the blood test were inadmissible because the Commonwealth failed to show he wa s physically unable to submit to a breath test and, thus, improperly denied him of his right to a br eath test under Code § 18.2-268.2(B). The Commonwealth argued Pearson’s di gestive problems physically precluded him from taking the breath test. Following argument, the tr ial court overruled Pearson’s objection and admitted the certificate of blood analysis. In announcing its ruling, the court observed that the record was “replete with” evidence of Pear son’s ongoing “trouble with [his ] digestive system” that resulted from the chili he had eaten “much earlier” that da y. Noting that Pearso n “may never be through with belching or burping,” the tria l court found that, in taking Pearso n to the magistrate and then for a blood test, Nealy “did all that was reasonably left to him to do.” Accordin gly, the court concluded that, because Pearson “was physically unable to submit to the breath test because he continued to burp,” the blood test was properly gi ven pursuant to Code § 18.2-268.2(B).- 4 - The trial court subsequently convicted Pearson of driving un der the influenc e of alcohol, second offense, in violat ion of Code § 18.2-266. This appeal followed.
II. ANALYSIS On appeal, Pearso n contends the trial court erred in ad mitting the results of the blood test into evidence because th e Commonwealth failed to prove he wa s physically unable to take the breath test. Evidence that he “merely burped thre e times in the space of three minutes,” Pearson maintains, is insufficient to prov e his inability to take the breath test. Absent such proof, Pearson argues, Sergeant Nealy’s decision to forgo administratio n of the breath test in favor of the blood test constituted a violation of Code § 18.2-268.2(B)’s re quirement that a person arrested for driving while intoxicated be given a breath test unless he is physically unable to take such a test. Therefore, Pearson concludes, the certificat e of analysis based on the bloo d test was inad missible. We disagree. “The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion.” Blain v. Commonwealth , 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). “By definition, when the trial court makes an error of law, an abuse of discretion occurs.” Bass v. Commonwealth , 31 Va. App. 373, 382, 523 S.E.2d 534, 539 (2000). Application of the provisi ons of Code § 18.2-268.2(B) involves a mixed question of law and fact. See Bennett v. Commonwealth , 33 Va. App. 335, 342 -43, 533 S.E.2d 22, 26 (2000) ( en banc ). Accordingly, in determining whether the trial court abused its discretion in this case, we will re view the court’s app lication of the law de novo while giving deference to its findings of fact. See Daily Press v. City of Newport News , 265 Va. 304, 309, 576 S.E.2d 430, 432-33 (2003) (“On appeal, we review a mixed question of law and fact de novo by giving deference to the trial cour t’s factual findings in order to review the court’s applica tion of the law to those facts.”).- 5 - Here, the trial court convicted Pearson of dr iving under the influen ce of alcohol, second offense, in violation of Code § 18 .2-266. The trial court based its co nviction, in part , on the results of the blood test it adm itted into evidence, whic h showed that Pearson had a blood alcohol content of 0.16%. See Code § 18.2-269(A)(3) (providing that “a chemical analysis of a sample of the accused’s blood” establishingthe accused had a blood alcohol cont ent of 0.08% or more gave rise to a presumption “that the accused was under the infl uence of alcohol intoxica nts at the time of the alleged offense”). The blood test was administer ed to Pearson only afte r Sergeant Nealy, upon consulting with the magistrate, d ecided Pearson was physically unab le to submit to a breath test because of his repeated burping. Code § 18.2-268.2, Virginia’s implied consent statute, provides, in relevant part, that any person who operates a motor vehi cle on the highways of the Comm onwealth shall be deemed “to have consented to have samples of his blood, br eath, or both blood and breath taken for a chemical test to determine the alcohol . . . content of his blood, if he is arrested for violation of [Code] § 18.2-266 . . . within three hours of the alle ged offense.” Code § 18.2-268.2(A). Code § 18.2-268.2(B) provides, in pertinent part, that “[ a]ny person so arrested . . . shall submit to a breath test. If the breath test is unavailable or the pe rson is physically unable to submit to the breath test, a blood test shall be given.” Hence, “[t]he arresting officer provides a blood test only when the [accused] is physically unab le to perform a breath test ” or no breath test is available. Oliver v. Commonwealth , 40 Va. App. 20, 23, 577 S.E.2d 514, 515-16 (2003). In this case, neither party contends the breath test was unavailable. The dispositive issue before us, then, is whether Sergeant Nealy pr operly determined, that Pearson was physically unable to submit to the breath te st because of his repeated bu rping. Applying the relevant provisions of Code § 18.2-268.2(B) outlined above to the evidence before us, we hold that he did.- 6 - Code § 18.2-268.11 provides that [t]he steps set forth in §§ 18.2-268.2 through 18.2-268.9 relating to taking, handling, identifying and di sposing of blood or breath samples are procedural and not substantive. Substantial compliance shall be sufficient. Failure to comply with any steps or portions thereof . . . 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 noncom pliance with the afor esaid procedures or any part thereof, and that as a result his rights were prejudiced. The Commonwealth bears the burden of provi ng substantial compliance with the statutes’ requirements. Snider v. Commonwealth , 26 Va. App. 729, 732, 496 S.E.2d 665, 666 (1998). Code § 18.2-268.9 provides that, “[t]o be capable of being considered valid as evidence in a prosecution under § 18.2-266 . . . , chemical anal ysis of a person’s breath shall be performed . . . in accordance with methods approved by the Department of Criminal Justice Services, Division of Forensic Science.” As applicable to this case, the breath test methods approved by the Department of Criminal Justice Services, Divi sion of Forensic Science are set forth in 6 VAC 20-190-110, which provides, in pertinent part, as follows: The division approves the following breath test methods and procedures:
* * * * * * * 2. The person to be tested sh all be observed for at least 20 minutes prior to colle ction of the breath specimen, during which period the person must not have ingested fluids, regurgitated , vomited, eaten, or smoked. Should any of these actions occur, an additional 20-minute observation period must be performed. (Emphasis added.) Plainly, the purpose of this re gulation is to assure th e testee has not engaged, either voluntarily or involuntaril y, in activities before a breath te st that could taint or otherwise affect the testee’s breath sample. In other wo rds, the regulation is intended to assure the accuracy of the test result, an objective as important to the accused as to the Commonwealth.- 7 - “Regurgitation” is defined as “an act of flowing, pouring, or gushing back or out again; specif : reversal of the natural direction in which the current or contents flow through a tube or cavity of the body.” Webster’s Th ird New International Dictionary1914 (1993). The terms “belch” and “burp,” which are synonymous, mean “to expel gas suddenly through the mouth.” Id. at 199, 300. Clearly, a burp or belch is a form of regurgitation in which air or other gas that has entered the stomach through the mouth is expelled from the stomach back into and through the mouth. As Nealy, a licensed conductor of the breath test, told Pearson after he indicated he had burped, the gas regurgitated from the stomach by burping “could affect [the] results [of the breath test] and create an invalid sample.” Thus, it is apparent from hi s testimony that Nealy understood through his traini ng that a breath test could be properl y administered only if the testee had not burped or belched during the twenty-minute period immediately before a breath sample is given. Indeed, Nealy explained at trial that, alth ough he had not seen or heard Pearson burp during the observation period, he was required, before obta ining a breath sample fr om him, to ask whether he had burped. He additionally ad monished Pearson, upon startin g the second and third observation periods, to immediately inform him if he burped again so that he could restart the required observation period without delay. In Schmerber v. California , 384 U.S. 757, 770 (1966), the Supreme Court noted that “the percentage of alcohol in the bloo d begins to diminish shortly af ter drinking stops, as the body functions to eliminate it from the system.” See also Davis v. Commonwealth , 8 Va. App. 291, 296, 381 S.E.2d 11, 14 (1989) (observing that “blood alcohol concentration, as me asured by a chemical test, is a function of many f actors including . . . the length of time between drinking and measurement”). Hence, there was a need for prompt testing in this case because the percentage of alcohol in Pearson’s bl ood was diminishing after Sergeant Nealy observed Pearson driving at approximately 8:07 p.m. See id. at 300, 381 S.E.2d at 16 (noti ng that, because the blood alcohol- 8 - measurement obtained from a prescribed chemical test is presumed to accurately reflect the accused’s blood alcohol concentra tion at the time of the alleged offense, the “blood alcohol absorption and elimination rates makes it clear the ti ming of the chemical test is critical in terms of the accuracy of the test to reflect the prior blood al cohol concentration at th e time of driving”); see also Romo v. Anchorage , 697 P.2d 1065, 1071 (A laska Ct. App. 1985) (recognizing the need for prompt administration of the breath test in order “to preserve ac curate evidence” of intoxication, because the alcohol concentration in an arrestee’s blood dissipates with the passage of time). When approached by Nealy, Pearson ad mitted that he had consum ed three beers over the past two hours at a restaurant. He also told Nealy that he had eaten some chili earlier in the day at a different restaurant and that the chili had given hi m indigestion. After arresting Pearson for driving under the influence of alc ohol, Nealy transported him to the jail for administration of a breath test. At the jail, Nealy began the requis ite twenty-minute observation period at 9: 02 p.m. At 9:36 p.m., Nealy asked Pearson if he had burped or belched, a nd Pearson told him that he had. It is unknown from the evidence, whether Pearson burped several times during that period or only once. Nealy then began a new twenty-minute observation perio d. At 9:37 p.m., Pearson indicated that he had burped again. Nealy began another twenty-minut e observation period. At 9:38 p.m., Pearson informed Nealy that he had burped again and told the officer that he was “having a to ugh time” with the chili he had eaten earlier. In light of the fact that Pear son was repeatedly burping becaus e of chili he had consumed at least three and a half hours earlier, we find it was reasonable for Ne aly to conclude that Pearson’s digestive problem would not end in time to obtain a valid breath sample and accurate test result before the blood alcohol evidence diminished. We conclude, therefor e, that Nealy acted properly in- 9 - determining that Pearson wa s “physically unable to submit to th e breath test,” within the meaning of Code § 18.2-268.2(B), and in taking him to the hospital for a blood test. 1 Pearson argues the Commonwealth must show that he was “passed out or severely injured” to prove he was “physically unable to submit to the breath test.” He cites no authority for this argument, and we know of no auth ority that limits such proof to these two circumstances. Here, although not “passed ou t or severely injured, ” Pearson’s physical co ndition precl uded him from submitting a valid, unt ainted breath samp le for analysis. For these reasons, we hold the trial court did not abuse its discretion in admitting the certificate of blood analysis into evidence. Accordingly, we affirm Pearson’s conviction. Affirmed.

1 Our holding—that Sergeant Nealy substant ially complied with Code § 18.2-268.2(B) because Pearson’s repeated burping met the statute’s “physical inability” requirement necessitating the use of a blood te st—is limited to the circumstances and legal context of this case. In other words, our dispositi on of this case is nota holding that, as a matter of law, the act of burping, be it observed, admitted, or subseque ntly asserted, constitutes a condition that necessarily renders one “physic ally unable” to submit to a breath test in all cases.