COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Humphreys and Retired Judge Kulp∗

Argued at Richmond, Virginia 

WILLIAM LEE KAUFFMAN 

 MEMORANDUM OPINION∗∗ BY 

v. Record No. 1725-98-2 JUDGE JAMES W. BENTON, JR. 

 JUNE 20, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS 

William R. Shelton, Judge 

 David A. Oblon (Juliet D. Hiznay; Albo & 

Oblon, L.L.P., on briefs), for appellant. 

 Steven A. Witmer, Assistant Attorney 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 judge convicted William Lee Kauffman of driving a 

motor vehicle while under the influence of alcohol in violation of 

Code § 18.2-266. Kauffman contends he was denied the opportunity 

to observe the process of analysis and see the blood-alcohol 

reading as required by Code § 18.2-268.2(B). Therefore, he argues 

the trial judge erred in refusing to suppress the certificate of 

analysis of his blood alcohol level. For the reasons that follow, 

we affirm the conviction.
 I. 

 On July 19, 1997, at 3:13 a.m., a police officer in the City 

of Colonial Heights saw a motor vehicle swerving numerous times 

outside the markers of the lane in which it was travelling. He 

stopped the vehicle and requested a driver's license and vehicle 

registration from the driver, William Kauffman. After the officer 

noticed that Kauffman's eyes were bloodshot and that Kauffman had 

a smell of alcohol about his person, he questioned Kauffman about 

his alcohol consumption. Kauffman said he had drunk two or three 

glasses of wine and two to three beers, consuming the last drink 

about thirty minutes before the officer stopped him. After 

Kauffman was unsuccessful in performing several dexterity tests, 

the officer arrested him. 

 At the police station, the officer advised Kauffman of his 

obligation to take a blood or breath test pursuant to Virginia's 

implied consent law. When Kauffman elected to take a breath test, 

the officer tested the blood alcohol content of Kauffman's breath 

using the Intoxilyzer 5000 machine, Series 768VA. 

 Prior to trial, Kauffman moved to suppress the certificate of 

analysis of the blood alcohol test. Kauffman argued that the 

certificate should be suppressed because he was not provided the 

opportunity to see either the test results of all breath samples 

or the entire analysis as required under Code §§ 18.2-268.2 and 

18.2-269.9. 

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 At the suppression hearing, Robert Masolf of the Division of 

Forensic Science testified that the Intoxilyzer 5000 takes an "air 

blank" to check the surrounding air, prior to testing a person's 

breath. After that check, the machine runs a simulator sample 

with a wet bath simulator that must meet certain tolerances and 

then runs another "air blank" to clear the chamber. When the 

person blows through the breath tube to the chamber, the machine 

analyzes the person's breath for alcohol and stores the results 

into memory. The machine then runs another "air blank" to clear 

the chamber, waits two minutes, and then asks for another sample. 

When the person breathes into the machine 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, the machine takes the lower 

of the two samples and presents it as the final result. That 

result is displayed on the machine and printed on a certificate. 

 On a weekly basis, the Division of Forensic Science downloads 

the testing results from each machine via a modem connected to the 

Division's offices in Richmond and obtains readings of both 

comparison samples from each machine. The Division then reviews 

the results of all tests conducted by each machine for quality 

control and to "troubleshoot" any operational problems. Masolf 

testified that the accused may obtain the higher of the two 

samples by request from the Division. After hearing this 

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evidence, the trial judge requested counsel to brief their 

arguments and took the motion under advisement. 

 At trial, Kauffman entered a plea of not guilty. The 

certificate of analysis, which indicated that Kauffman's blood 

alcohol content was .12 grams per 210 liters of breath, was 

admitted in evidence subject to the judge's ruling on the motion 

to suppress. Following the presentation of evidence, the trial 

judge stated that "if the certificate doesn't come in, I don't 

think the evidence is sufficient for me to find beyond a 

reasonable doubt that he was intoxicated, not from the evidence 

that I have." At a hearing held at the conclusion of the trial, 

the trial judge denied Kauffman's motion to suppress the 

certificate and convicted Kauffman of driving under 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. 

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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 

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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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