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 JUDGE JEAN 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 (Jerry W. Kilgore, 

Attorney General, on brief), for appellee. 

 Donald E. Pearson was convicted in a bench trial of driving under the influence of alcohol, 

second offense, in violation of Code § 18.2-266. On appeal, he contends the trial court erred in 

admitting a certificate of blood analysis because, in having him take a blood test rather than a breath 

test, the arresting officer failed to comply with Virginia’s implied consent law. Finding 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 most favorable to the Commonwealth, the prevailing party 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 Pearson drive into a Mobile gas station in York County. Nealy 

approached Pearson and observed that Pearson’s speech was slightly slurred and that there was a 
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strong odor of alcohol coming from Pearson’s person after he exited his vehicle. Pearson’s eyes 

appeared “glassy, watery and bloodshot,” and his complexion was flushed. Pearson swayed slightly 

and was argumentative and “unfocused” as he talked to Nealy. Pearson admitted to the officer that 

he had consumed three beers 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 indigestion. 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 Virginia’s implied consent law. Nealy then 

transported Pearson to the Virginia Peninsula Regional Jail, where he intended to administer a 

breath alcohol test to him. 

 In preparation for administering the breath alcohol test, Nealy, “a licensed breath alcohol 

operator” of the Intoxilyzer 5000 breath analysis machine, inspected 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 the Intoxilyzer 5000 and, after 

determining the machine was working properly, entered the necessary identifying 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 during 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 period. He told Pearson 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 period and once more told Pearson to let him know if he burped 

again. At 9:38 p.m., Pearson informed Nealy that he had burped again and told the officer that he 
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was “having a tough time” with the chili he had eaten earlier. At trial, Nealy explained that, 

although he did not observe Pearson burp or belch, 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 the administration of the test or that Pearson was otherwise 

uncooperative. 

 Seeking advisement as to Pearson’s status under the implied consent law, Nealy took 

Pearson to see a magistrate. After a brief discussion with the magistrate, Nealy took Pearson to 

Williamsburg Community Hospital for a blood test. A registered nurse took samples of Pearson’s 

blood at approximately 10:38 p.m. According to the Department of Criminal Justice Services, 

Division of Forensic Science certificate of analysis introduced by the Commonwealth at trial, an 

analysis of the blood drawn from 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 was physically unable to submit to a breath test and, thus, 

improperly denied him of his right to a breath test under Code § 18.2-268.2(B). The 

Commonwealth argued Pearson’s digestive problems physically precluded him from taking the 

breath test. 

 Following argument, the trial 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 Pearson’s ongoing “trouble with [his] digestive system” that resulted 

from the chili he had eaten “much earlier” that day. Noting that Pearson “may never be through 

with belching or burping,” the trial court found that, in taking Pearson to the magistrate and then for 

a blood test, Nealy “did all that was reasonably left to him to do.” Accordingly, 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 given pursuant to Code § 18.2-268.2(B). 
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 The trial court subsequently convicted Pearson of driving under the influence of alcohol, 

second offense, in violation of Code § 18.2-266. This appeal followed. 

II. ANALYSIS 

 On appeal, Pearson contends the trial court erred in admitting the results of the blood test 

into evidence because the Commonwealth failed to prove he was physically unable to take the 

breath test. Evidence that he “merely burped three times in the space of three minutes,” Pearson 

maintains, is insufficient to prove his inability to take the breath test. Absent such proof, Pearson 

argues, Sergeant Nealy’s decision to forgo administration of the breath test in favor of the blood test 

constituted a violation of Code § 18.2-268.2(B)’s requirement 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 certificate of analysis based on the blood test was inadmissible. 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 provisions 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 review the court’s application 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 court’s factual findings in order to review the court’s application of the law to 

those facts.”). 
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 Here, the trial court convicted Pearson of driving under the influence of alcohol, second 

offense, in violation of Code § 18.2-266. The trial court based its conviction, in part, on the results 

of the blood test it admitted into evidence, which 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” establishing the accused had a blood alcohol content of 0.08% or more gave rise 

to a presumption “that the accused was under the influence of alcohol intoxicants at the time of the 

alleged offense”). The blood test was administered to Pearson only after Sergeant Nealy, upon 

consulting with the magistrate, decided Pearson was physically unable 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 vehicle on the highways of the Commonwealth shall be deemed “to 

have consented to have samples of his blood, breath, 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 alleged 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 person 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 unable 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 properly determined, that Pearson was physically 

unable to submit to the breath test because of his repeated burping. Applying the relevant 

provisions of Code § 18.2-268.2(B) outlined above to the evidence before us, we hold that he did. 
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 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 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 . . . 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. 

The Commonwealth bears the burden of proving 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 analysis 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, Division 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 shall be observed for at least 20 

minutes prior to collection 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 regulation is to assure the testee has not engaged, 

either voluntarily or involuntarily, in activities before a breath test that could taint or otherwise 

affect the testee’s breath sample. In other words, the regulation is intended to assure the 

accuracy of the test result, an objective as important to the accused as to the Commonwealth. 
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 “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 Third New International Dictionary 1914 (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 his testimony that Nealy 

understood through his training that a breath test could be properly 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, although he had not seen or heard Pearson burp during 

the observation period, he was required, before obtaining a breath sample from him, to ask whether 

he had burped. He additionally admonished Pearson, upon starting 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 blood begins to diminish shortly after 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 measured by a chemical 

test, is a function of many factors 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 blood was diminishing after Sergeant Nealy observed Pearson driving at 

approximately 8:07 p.m. See id. at 300, 381 S.E.2d at 16 (noting that, because the blood alcohol 
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measurement obtained from a prescribed chemical test is presumed to accurately reflect the 

accused’s blood alcohol concentration at the time of the alleged offense, the “blood alcohol 

absorption and elimination rates makes it clear the timing of the chemical test is critical in terms of 

the accuracy of the test to reflect the prior blood alcohol concentration at the time of driving”); see 

also Romo v. Anchorage, 697 P.2d 1065, 1071 (Alaska Ct. App. 1985) (recognizing the need for 

prompt administration of the breath test in order “to preserve accurate evidence” of intoxication, 

because the alcohol concentration in an arrestee’s blood dissipates with the passage of time). 

 When approached by Nealy, Pearson admitted that he had consumed 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 him indigestion. After arresting Pearson for driving 

under the influence of alcohol, Nealy transported him to the jail for administration of a breath test. 

At the jail, Nealy began the requisite twenty-minute observation period at 9:02 p.m. At 9:36 p.m., 

Nealy asked Pearson if he had burped or belched, and 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 period. At 9:37 p.m., Pearson indicated that he had 

burped again. Nealy began another twenty-minute observation period. At 9:38 p.m., Pearson 

informed Nealy that he had burped again and told the officer that he was “having a tough time” with 

the chili he had eaten earlier. 

 In light of the fact that Pearson was repeatedly burping because of chili he had consumed at 

least three and a half hours earlier, we find it was reasonable for Nealy 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, therefore, that Nealy acted properly in 
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determining that Pearson was “physically unable to submit to the 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 authority that limits such proof to these two circumstances. Here, 

although not “passed out or severely injured,” Pearson’s physical condition precluded him from 

submitting a valid, untainted breath sample 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 substantially 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 test—is limited to the circumstances and legal context of this 

case. In other words, our disposition of this case is not a holding that, as a matter of law, the act 

of burping, be it observed, admitted, or subsequently asserted, constitutes a condition that 

necessarily renders one “physically unable” to submit to a breath test in all cases.