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COURT OF APPEALS OF VIRGINIA 

Present: Judges Koontz, Elder and Fitzpatrick 

Argued at Salem, Virginia 

JOSEPH SIMON COOK 

v. Record No. 0326-94-3 MEMORANDUM OPINION*

 BY 

 JUDGE JOHANNA L. FITZPATRICK 

TOWN OF WYTHEVILLE JULY 18, 1995 

FROM THE CIRCUIT COURT OF WYTHE COUNTY 

Willis A. Woods, Judge 

 Randolph D. Eley, Jr., for appellant. 

 No brief or argument for appellee. 

 Joseph Simon Cook (appellant) was convicted in a bench trial 

of driving under the influence, second offense, in violation of 

Wythe County Code § 8-4 and Virginia Code § 18.2-266. On appeal, 

he contends that the trial court erred in finding that: (1) he 

was in the presence of the magistrate when the police officer 

testified about the circumstances of the arrest, and (2) he was 

arrested within two hours of the time of the offense as required 

by Code § 18.2-268.2(A). For the reasons that follow, we affirm 

the conviction. 

 BACKGROUND

 On August 1, 1993, Officer James Harrington (Harrington) of 

the Town of Wytheville Police Department saw appellant driving in 

the Town of Wytheville. At 12:47 a.m., appellant made a wide 

 *Pursuant to Code § 17.116.010 this opinion is not 

designated for publication. 
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turn and the front wheel of his car crossed into the on coming 

lane. Harrington stopped appellant at 12:51 a.m., detected the 

smell of alcohol on his breath, and conducted several field 

sobriety tests. Harrington testified that he arrested appellant 

at 1:02 a.m., but on cross-examination, Harrington agreed that 

the time of arrest may have been a few minutes later at 1:09 to 

1:10 a.m. Harrington's notes prepared that morning indicated 

that appellant was arrested at 1:02 a.m. 

 After arresting appellant, Harrington took him to the 

magistrate's office. Harrington testified that he and appellant 

were both present before the magistrate, whose office had a 

window that opened into a narrow hallway. Harrington stopped at 

the window, and appellant was either standing within one to two 

feet or was seated on a bench directly across from the window. 

Harrington stated: "He and I were together. He was in my 

presence when I explained to her (the magistrate) what happened. 

 As I recall we were both in the hallway together at the open 

window, which does not have a glass." The magistrate issued the 

warrant at 1:20 a.m.; the breath test analysis was conducted 

after the issuance of the warrant at 1:59 a.m.; and Harrington 

executed the warrant at 2:03 a.m. Appellant testified that he 

did not make eye contact with the magistrate before the breath 

test and that he was not present when the officer told the 

magistrate about the offense. 

RIGHT TO APPEAR BEFORE THE MAGISTRATE
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 Appellant argues that he was not "brought forthwith before a 

magistrate" because he did not have the opportunity to speak with 

the magistrate and was not in the magistrate's line of vision. 

We disagree. 

 Code § 19.2-82 provides as follows: 

 A person arrested without a warrant 

shall be brought forthwith before a 

magistrate or other issuing authority having 

jurisdiction who shall proceed to examine the 

officer making the arrest under oath. . . . 

 As used in this section the term 

"brought before a magistrate or other issuing 

authority having jurisdiction" shall include 

a personal appearance before such authority 

or any two-way electronic video and audio 

communication meeting the requirements of 

 § 19.2-3.1, in order that the accused and the 

arresting officer may simultaneously see and 

speak to such magistrate or authority. 

"In the absence of clear evidence to the contrary, courts may 

presume that public officers have properly discharged their 

official duties." Robertson v. Commonwealth, 12 Va. App. 854, 

856-57, 406 S.E.2d 417, 418 (1991). "'The finding of the judge, 

upon the credibility of the witnesses and the weight to be given 

their evidence, stands on the same footing as the verdict of a 

jury, and unless that finding is plainly wrong, or without 

evidence to support it, it cannot be disturbed.'" Yates v. 

Commonwealth, 4 Va. App. 140, 143, 355 S.E.2d 14, 16 (1987) 

(quoting Lane v. Commonwealth, 184 Va. 603, 611, 35 S.E.2d 749, 

753 (1945)). 

 When viewed in the light most favorable to the Commonwealth, 
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the evidence established that Harrington and appellant were both 

present before the magistrate when Harrington explained the basis 

for the arrest. Appellant was in a narrow hallway, either 

standing within one to two feet of Harrington or seated on a 

bench directly across from the magistrate's window. The trial 

judge did not abuse his discretion in accepting Harrington's 

testimony and not that of appellant. 

TIME OF ARREST

 Appellant also argues that the Commonwealth failed to prove 

that he was arrested within two hours of the offense as required 

by Code § 18.2-268.2(A). If he was not arrested within the 

two-hour time limit, then he cannot be deemed to have consented 

to the breath test, and the certificate of analysis was 

inadmissible. 

 Code § 18.2-268.2(A) provides as follows: 

 Any person, whether licensed by Virginia 

or not, who operates a motor vehicle upon a 

highway, as defined in § 46.2-100, in this 

Commonwealth shall be deemed thereby, as a 

condition of such operation, to have 

consented to have samples of his blood, 

breath, or both blood and breath taken for a 

chemical test to determine the alcohol, drug, 

or both alcohol and drug content of his 

blood, if he is arrested for violation of 

 § 18.2-266 or of a similar ordinance within 

two hours of the alleged offense.

(Emphasis added). The "alleged offense" in a drunk driving case 

is the conduct of operating a vehicle on a public highway while 

under the influence of alcohol. Overbee v. Commonwealth, 227 Va. 

238, 242, 315 S.E.2d 242, 244 (1984). 
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 The record in this case established that Harrington saw 

appellant driving at 12:47 a.m. and stopped him at 12:51 a.m. 

Neither of these times was questioned by appellant on crossexamination. Thus, the two-hour time limit must be measured from 

the 12:47 a.m. time. Harrington's notes reflected a time of 

arrest of 1:02 a.m., but on cross-examination, appellant showed 

that the time of arrest could have been closer to 1:09 or 1:10 

a.m. The magistrate issued an arrest warrant at 1:59 a.m., and 

Harrington executed the warrant at 2:03 a.m. We hold that 

Harrington clearly arrested appellant within the two-hour time 

limit. Both the initial arrest at 1:02 a.m. to 1:10 a.m. and the 

later execution of the warrant at 2:03 a.m. were "within two 

hours of the alleged offense," which occurred when appellant was 

last seen driving his vehicle at 12:47 a.m. 

 Accordingly, the decision of the trial court is affirmed. 

 Affirmed.