COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Coleman and Elder 

Argued at Salem, Virginia 

DONALD JEFFREY JOSEPH 

v. Record No. 0607-95-3 

 

COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION*

 BY JUDGE JOSEPH E. BAKER 

JEFFREY WAYNE HODGES DECEMBER 10, 1996 

v. Record No. 0608-95-3 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ROANOKE COUNTY 

Kenneth E. Trabue, Judge Designate 

 Jonathan S. Kurtin (Lutkins, Shapiro & 

Kurtin, on brief), for appellants. 

 Marla Graff Decker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Donald Jeffrey Joseph and Jeffrey Wayne Hodges (appellants) 

were arrested and convicted in bench trials for driving while 

intoxicated in violation of Code § 18.2-266. The dispositive 

issue in each case is whether the trial court erred by admitting 

into evidence a certificate of breath alcohol analysis that 

purportedly does not contain the date and time each breath sample 

was taken. Appellants contend that Code § 18.2-268 requires 

that, in order to be admissible without the testimony from the 

person authenticating the test, the certificate must state the 

 

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

designated for publication. 
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date and time the breath sample was taken from appellants. 

Joseph's appeal presents the additional issue of whether the 

trial court erroneously convicted him of feloniously operating a 

motor vehicle after having been adjudicated an habitual offender. 

 Joseph contends that without the certificate as evidence, he was 

wrongfully convicted of the felony. 

 I. The Certificate

 Code § 18.2-266 prohibits any person from driving a motor 

vehicle in the Commonwealth "while such person has a blood 

alcohol concentration of 0.08 percent or more by weight by volume 

or 0.08 grams or more per 210 liters of breath as indicated by a 

chemical test administered as provided in this article." Code 

§ 18.2-267 directs that any person suspected of driving in 

violation of Code § 18.2-266 is entitled to have his breath 

analyzed by any of several persons designated therein to 

determine the probable alcohol content of his blood, and that any 

person charged with violation of Code § 18.2-266 or § 18.2-266.1 

or any similar local ordinance "shall then be subject to the 

provisions of §§ 18.2-268.1 through 18.2-268.12, or of a similar 

[local] ordinance." 

 Any person who operates a motor vehicle upon a highway of 

this Commonwealth shall be deemed to have consented to have his 

breath tested. Code § 18.2-268.2. Code § 18.2-268.9 provides 

that to be considered valid as evidence in a prosecution for 

driving under the influence, a chemical analysis of a person's 
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breath shall be performed only by the individuals described in 

that section and by methods approved by the Department of 

Criminal Justice Services, Division of Forensic Sciences. In 

relevant part, Code § 18.2-268.9 further provides: 

 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 

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. This certificate, when 

attested by the individual conducting the 

breath test, shall be admissible in any court 

in any criminal or civil proceeding as 

evidence of the facts therein stated and of 

the results of such analysis. Any such 

certificate of analysis purporting to be 

signed by a person authorized by the Division 

shall be admissible in evidence without proof 

of seal or signature of the person whose name 

is signed to it. A copy of the certificate 

shall be promptly delivered to the accused. 

 The officer making the arrest, or anyone 

with him at the time of the arrest, or anyone 

participating in the arrest of the accused, 

if otherwise qualified to conduct such test 

as provided by this section, may make the 

breath test or analyze the results. 

 Code § 18.2-268.11 specifically directs that the steps set 

forth in Code §§ 18.2-268.2 through 18.2-268.9 are procedural, 

not substantive, and further provides: 

 Failure to comply with any steps or 

portions thereof, or a variance in the 

results of the two blood tests shall not of 
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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 determinative issue in appellants' cases is whether Code 

§ 18.2-268.11 applies to the provisions of Code § 18.2-268.9. We 

hold that it does. 

 Appellants' sole claim is that the certificates of analysis 

are inadmissible as a matter of law because they did not show the 

dates and times the samples were taken. In all other respects, 

they concede that the certificates complied with the code 

provisions. The record discloses that a warrant of arrest for 

violation of Code § 18.2-266 was issued against Joseph on 

July 31, 1994 at 1:45 a.m. The certificate shows that the test 

was "performed on July 31, 1994 at 2:33 a.m." The warrant was 

served on Joseph at 2:36 a.m. The record also discloses that a 

warrant of arrest for violation of Code § 18.2-266 was issued 

against Hodges on October 1, 1994 at 3:49 a.m. The certificate 

shows that the test was performed on October 1, 1994 at 4:14 a.m. 

 The warrant was served on Hodges at 4:20 a.m. At trial, 

appellants submitted the Commonwealth's Division of Forensic 

Sciences' Breath Alcohol Operator Training Manual for the trial 

court's consideration. That document requires that the breath 

test procedure be substantially contemporaneous with the time the 

sample was taken. The record confirms compliance with that 
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requirement. 

 In each case, notations on the warrants showing when the 

breath tests were "performed" were sufficient to prove when the 

samples were taken. Accordingly, we hold that in each case the 

record establishes substantial compliance with the Code 

provisions and the trial court did not err when it admitted the 

respective certificates into evidence. 

 II. Habitual Offender

 An habitual offender who drives a motor vehicle while the 

revocation of the person's driving privilege remains in effect 

and the person's driving, of itself, endangers the life, limb, or 

property of another, shall be guilty of a felony. Code 

§ 46.2-357. Joseph contends that the evidence was insufficient 

to prove that his driving endangered the life, limb, or property 

of another and, thus, he did not commit a felony offense. We 

disagree. 

 Viewed in the light most favorable to the Commonwealth and 

granting it all reasonable inferences deducible therefrom, 

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 

537 (1975), the evidence reveals that on July 31, 1994, Officer 

Reynolds (Reynolds) of the Roanoke County Police Department saw 

Joseph drive his blue pick-up truck and attempt to enter the flow 

of traffic from a parking lot. Joseph pulled out in front of an 

oncoming car and accelerated rapidly. Joseph's actions forced 

the driver of the oncoming car to slam on its brakes and skid off 
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to the right. Joseph then rapidly accelerated his truck and ran 

it onto the right shoulder of the road. Although the shoulder 

was not marked by a dividing line, the truck went three-quarters 

of its width off of the travel lane. Reynolds activated his 

emergency lights, but Joseph ignored them and proceeded forward. 

 Reynolds activated his siren. Joseph waved to Reynolds and 

continued on, stopping his truck in a left-center turn lane about 

one-half mile from where the pursuit began. Throughout the 

pursuit, Reynolds watched the vehicle weaving within its lane. 

The breathalyzer test showed Joseph's blood alcohol content to 

be 0.10. 

 In Travis v. Commonwealth, 20 Va. App. 410, 457 S.E.2d 420 

(1995), we held that evidence of the defendant weaving in his own 

lane and into another was sufficient to find the endangerment 

necessary to support a felony violation of Code § 46.2-357. Id.

at 417, 457 S.E.2d at 423. Here, Joseph cut off another vehicle, 

causing its driver to slam on the brakes and resulting in the car 

going into a skid. Additionally, Joseph drove his truck off the 

shoulder of the road and was weaving within his lane. This 

evidence supports the trial court's finding of endangerment. 

 For the foregoing reasons, the judgments of the trial court 

are affirmed. 

 Affirmed.