COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Hu mphreys and Reti red Judge Kulp ∗ Argued at Rich mond, Virginia

WILLIAM LEE KAUFFMAN MEMORANDUM OPINION ∗∗ BY v. Record No. 1725-98-2 JU DGE JAMES W. BENTON, JR. JUNE 20, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT CO URT OF THE CITY OF COLONIAL HEIGHTS William R. Sh elton, Judge David A. Oblon (Jul iet D. Hiznay; Albo & Oblon, L.L.P., on briefs), for appellant. Steven A. Witmer, As sistant Attorn ey General (Mark L. Earley, Attorney General, on brief), for appellee.

∗ Retired Judge James E. Kulp took part in the consideration of this case by designation pursuant to Code § 17.1-400, recodifying Code § 17-116.01.

∗∗ Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. The trial judg e convicted William Lee Kauffman of driving a motor vehicle whil e under the influe nce of alcohol in violation of Code § 18.2-266. Kauf fman contends he was denied the opportunity to observe the proces s of analysis and se e the bloo d-alcohol reading as required by Code § 18.2-268.2 (B). Therefor e, he argues the trial judge er red in refusing to supp ress the certificate of analysis of his blood alcohol leve l. For the reas ons that follow, we affirm th e conviction.I. On July 19, 1997, at 3:13 a.m., a police officer in the City of Colonial Heights sa w a motor vehicl e swerving nu merous times outside the marker s of the lane in which it was travel ling. He stopped the vehicl e and requested a driver's lice nse and vehicle registration from the driver, Will iam Kauffman. Af ter the officer noticed that Kauffman's eyes were bloodshot and that Kauffman had a smell of alcohol abou t his person, he questi oned Kauffman about his alcohol consum ption. Kauffman said he had dr unk two or three glasses of wine and tw o to three beers, cons uming the last drink about thirty minutes before th e officer stoppe d him. After Kauffman was unsuccessf ul in performing seve ral dexterit y tests, the officer arre sted him. At the police station, the of ficer advised Ka uffman of his obligation to take a bl ood or breath test pu rsuant to Virginia's implied consent law. When Kauffm an elected to take a breath test, the officer tested the blood alcoho l content of Kauf fman's breath using the Into xilyzer 5000 machine, Series 768VA. Prior to trial, Kauf fman moved to suppress the certificate of analysis of the blood alcohol test . Kauffman argued that the certificate sh ould be suppressed because he was not provided the opportunity to see eith er the test results of all breath samples or the entire analysis as required under Co de §§ 18.2-268.2 and 18.2-269.9.

- 2 -At the suppression he aring, Robert Masolf of the Division of Forensic Science testif ied that the Intoxilyze r 5000 takes an "air blank" to check the surrounding ai r, prior to test ing a person's breath. After that ch eck, the machine runs a simulator sample with a wet bath simula tor that must meet ce rtain tolera nces and then runs anothe r "air blank" to clear the chamber. When the person blows through th e breath tube to the chamber, the machine analyzes the person's breath fo r alcohol and stor es the results into memory. The mach ine then runs another "air bl ank" to clear the chamber, waits two minutes, and then asks for anothe r sample. When the person brea thes into the machin e a second time, it calculates the alcohol content of the second sample and compares it with the alcohol content of the first sample. If the two samples are within .02 of each other, th e machine take s the lower of the two samples and presents it as the final result. That result is displa yed on the machin e and printed on a certific ate. On a weekly basis, the Division of Forensic Scie nce downloads the testing result s from each mach ine via a modem co nnected to the Division's offices in Richmond and obtain s readings of both comparison samples from each machine. The Division th en reviews the results of all te sts conducted by each machin e for quality control and to "troubleshoot" an y operational prob lems. Masolf testified that the accused may obtain the high er of the two samples by request from the Di vision. After hearing this

- 3 -evidence, the trial judge reques ted counsel to brief their arguments and took the motion un der advisement. At trial, Kauffman entered a plea of not guilty. The certificate of analys is, which indica ted that Kauffman's blood alcohol content was .12 grams pe r 210 liters of breath, was admitted in evid ence subject to the judge' s ruling on the motion to suppress. Followin g the presentati on of eviden ce, the trial judge stated that "i f the certificat e doesn't come in, I don't think the eviden ce is sufficient for me to find beyond a reasonable doubt that he was intoxica ted, not from the evidence that I have." At a he aring held at the conclusion of the trial, the trial judge denied Kauffman's moti on to suppress the certificate and co nvicted Kauffm an of driving un der the influence of alcohol. This appeal followed.

II. Code § 18.2-268.2(B) provides as follows: Any person so arrested for a violation of § 18.2-266(i) or (ii) or both, or § 18.2-266.1 or of a similar ordinance 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. The accused shall, prior to administration of the test, be advised by the person administering the test that he has the right to observe the process of analysis and to see the blood-alcohol reading on the equipment used to perform the breath test. If the equipment automatically produces a written printout of the breath test result, the printout, or a copy, shall be given to the accused.

- 4 -To implement this statute, Code § 18.2-268.9 provides, in pertinent part, that "[a]ny individual conducting a breath test under the provisions of [Code] § 18.2-268.2 shall issue a certificate which will indicate . . . 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." In addition, Code § 18.2-268.9 provides that the certificate is admissible "when attested by the individual conducting the breath test." This appeal is controlled by our ruling in Rasmussen v. Commonwealth , 31 Va. App. 233, 522 S.E.2d 401 (1999). In response to an identical claim, we ruled as follows: [Appellant] also contends that the term "process of analysis" necessarily encompasses the analysis of both samples taken and that, therefore, he was entitled to view the results obtained from each sample. However, when construed in the context of Code § 18.2-268.2 in its entirety, we find that the term "process of analysis" does not enlarge the scope of what [appellant] is entitled to review. A distinction must be made between the right to see the steps undertaken to achieve a result ("the process of analysis," such as the taking of a sample), the operation of the testing machine and the print-out of the test results, and the right to see the result itself. Here, the statute clearly limits an arrestee's right to "see[ing] the blood alcohol reading [printed] on the equipment used to perform the breath test." Code § 18.2-268.2(B). Based on our holding in Breeden v. Commonwealth , 15 Va. App. 148, 149, 421 S.E.2d 674, 675 (1992), [appellant] further

- 5 -contends that the failure to provide him the opportunity to review the test result of the other sample deprived him of access to potentially exculpatory breathalyzer evidence. This argument also lacks merit. The testimony of the breathalyzer operator at trial established that the machine was properly calibrated and that it printed a test result reflecting the lower of the two sample readings. Thus, the only evidence not made immediately available to Rasmussen was evidence of an inculpatory nature. As [appellant] was afforded the opportunity to view the print-out of the blood-alcohol reading taken by the breathalyzer machine, the requirements of Code §§ 18.2-268.2 and 18.2-268.9 were met. Id. at 239-40, 522 S.E.2d at 404 (footnotes omitted). For these reasons, we hold that the trial judge did not err in denying Kauffman's motion to suppress the certificate of analysis. Accordingly, we affirm the judgment. Affirmed

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