COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Overton 

Argued at Alexandria, Virginia 

EARL A. TERPSTRA, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 0716-95-4 JUDGE NELSON T. OVERTON 

 APRIL 9, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jane Marum Roush, Judge 

 R. Ramsey Maupin for appellant. 

 Brian Wainger, Assistant Attorney General 

(James S. Gilmore, III, Attorney General; 

Margaret Ann B. Walker, Assistant Attorney 

General, on brief), for appellee. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 

 Earl A. Terpstra was convicted at a bench trial of driving a 

motor vehicle while intoxicated, a violation of Code § 18.2-266. 

 He appeals his conviction on the grounds that (1) the 

certificate of breath test results did not comply with the 

statute in effect as of his trial date and (2) that evidence of 

his drinking after stopping his car fatally tainted the breath 

test results. For the reasons that follow, we affirm the 

conviction. 

 On June 15, 1994, at approximately 1:00 a.m., Terpstra was 

observed by two police officers running a red light and 

accelerating quickly away. The officers pursued Terpstra's 

vehicle, which was travelling between 40 to 50 miles per hour 
- 2 - 

 

through a residential zone. They continued, lights and siren 

activated, until Terpstra turned off his headlights and pulled 

into his driveway.1

 The officers approached Terpstra and noticed 

his red, glassy eyes and a strong odor of alcohol. As the 

officers attempted to take Terpstra into custody, he became 

belligerent, and the officers were forced to use pepper spray. 

Because of Terpstra's uncooperative nature, no field sobriety 

tests were administered. Terpstra admitted that he had drunk a 

few beers at a bowling alley that night. The results of his 

breath test, given at the county jail, showed a blood alcohol 

level of .13%. At a trial held March 30, 1995, Terpstra 

testified that he did not run a red light, that he did not see 

the police officers behind him until he was home, and that after 

he had shut his engine off he drank from a bottle of vodka in his 

car. He was convicted. 

 Terpstra assigns error to the admission of the breath test 

results at trial because the certificate did not comply with the 

statutory requirements. Code § 18.2-268.9, governing the use of 

breath test results as evidence, states in pertinent part: 

 Any individual conducting a breath test under 

the provisions of § 18.2-268.2 shall issue a 

certificate which will indicate that the test 

was conducted in accordance with the 

Division's specifications, the equipment on 

which the breath test was conducted has been 

tested within the past six months and has 

been found to be accurate, the name of the 

 1Terpstra was also convicted of speeding to elude a police 

officer under Code § 46.2-817, but does not contest this 

conviction on appeal. 
- 3 - 

accused, 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, the date and time the sample was 

taken from the accused, the sample's alcohol 

content, and the name of the person who 

examined the sample. 

(Emphasis added). The 1994 Amendment to Code § 18.2-268.2 added 

the emphasized language and became effective July 1, 1994, 

fifteen days after the offense in question. Terpstra's 

certificate lacked this new required language. 

 We hold that this omission does not render the results 

inadmissible in this case. The breath test and the certificate 

were completed before the new amendment had become effective. 

Every step in administering and recording the results of 

Terpstra's breath test conformed the statute as it was when the 

test was given. To require compliance with a provision not yet 

law defies common sense. Code § 1-16 requires procedural 

provisions of the Code in effect on the date of trial to "control 

insofar as practicable." Code § 1-16; see Smith v. Commonwealth, 

219 Va. 455, 476, 248 S.E.2d 135, 148 (1978), cert. denied, 441 

U.S. 967 (1979). Conformity in this case was clearly not 

practicable. 

 Terpstra also argues that the after-consumed alcohol renders 

the breath test results inadmissible. This contention fails as 

well. The measurement of a blood alcohol test creates a 

rebuttable presumption that the measurement accurately reflects 

the blood alcohol concentration at the time of driving. See
- 4 - 

Davis v. Commonwealth, 8 Va. App. 291, 299, 381 S.E.2d 11, 16 

(1989). The defendant is entitled to challenge this presumption 

through evidence calling into question the accuracy of the test 

results. Id. Terpstra attempted to rebut the presumption by 

testifying that he drank alcohol after he had stopped his 

vehicle. We must determine whether the evidence presented at 

trial, viewed in the light most favorable to the Commonwealth, 

sufficiently rebutted the presumption. 

 The trial judge heard testimony that Terpstra was stopped 

after driving in a careless manner, that his eyes were red and 

glassy upon exiting the vehicle, that he was violently 

uncooperative with the police, and that he admitted having a few 

beers earlier. Weighed against the defendant's unsupported claim 

that he drank more alcohol after stopping his car, the judge 

reasonably could have concluded that Terpstra's blood alcohol 

concentration was over the limit allowed by law. 

 We find that the breath test results were admissible. We 

further find that the defendant's evidence did not rise to a 

level sufficient as a matter of law to rebut the presumption that 

the test results accurately reflect the blood alcohol 

concentration of the defendant at the time he operated his 

vehicle. The conviction is affirmed. 

 Affirmed.