COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Senior Judge Cole 

Argued at Richmond, Virginia 

CARL EDWARD ANDERSON 

 OPINION BY 

v. Record No. 2704-95-2 JUDGE ROSEMARIE ANNUNZIATA 

 JUNE 17, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Thomas N. Nance, Judge 

 Cullen D. Seltzer, Assistant Public Defender 

(David J. Johnson, Public Defender, on 

briefs), for appellant. 

 Steven A. Witmer, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Following a bench trial, appellant, Carl E. Anderson, was 

convicted of DUI, third offense, and operating a motor vehicle 

after having been adjudicated an habitual offender. On appeal, 

he contends the trial court erred in admitting into evidence the 

certificate of breath analysis and the order adjudicating him an 

habitual offender. We disagree and affirm his convictions. 

 I. 

 The facts are not in dispute. On August 16, 1995, Officer 

VanLandingham stopped appellant after observing him make an 

illegal left turn. The officer detected an odor of alcohol about 

appellant and noticed that his eyes were bloodshot. Appellant 

admitted that he had consumed at least fifteen beers during the 

preceding four and one-half hour period. He then performed 

poorly on field sobriety tests directed by the officer. 
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Appellant failed the heel-to-toe test, twice losing his balance, 

as well as the one-legged stand; he further stated he was unable 

to recite the alphabet between the letters F and N. The officer 

arrested appellant and transported him to the station house where 

the officer gave appellant a breath analysis test. 

 Officer VanLandingham testified concerning the testing 

procedures she followed. She described a self-test that the 

breath analysis machine runs to assure that no residual alcohol 

in the machine or in the air affects the test result. None was 

detected in the present case. 

 The machine printed a certificate of analysis, which showed 

appellant's breath alcohol content to be .13 grams per 210 liters 

of breath. The certificate further indicated that the breath 

analysis machine had been tested for accuracy by the Division of 

Forensic Science on April 19, 1995, and the certificate's 

attestation clause contained the following statement: 

 THE EQUIPMENT ON WHICH THE BREATH TEST WAS 

CONDUCTED HAS BEEN TESTED WITHIN THE PAST SIX 

MONTHS AND FOUND TO BE ACCURATE. 

Officer VanLandingham attested to those statements by signing the 

attestation clause. VanLandingham acknowledged that she had no 

personal knowledge that the machine had been tested for accuracy. 

 The certificate was admitted into evidence over appellant's 

objection. 

 In 1991, the Circuit Court of Campbell County entered an 

order adjudicating appellant an habitual offender and directing 
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that he "shall not operate a motor vehicle on or upon the 

highways of the Commonwealth of Virginia." The order was 

admitted into evidence over appellant's objection. 

 II. 

 Code § 18.2-268.91

 requires that the breath analysis 

certificate indicate, inter alia, that "the equipment on which 

 

 1Code § 18.2-268.9 provides in part: 

 To be capable of being considered valid 

as evidence in a prosecution under § 18.2-266 

or § 18.2-266.1, chemical analysis of a 

person's breath shall be performed by an 

individual possessing a valid license to 

conduct such tests, with a type of equipment 

and in accordance with methods approved by 

the Department of Criminal Justice Services, 

Division of Forensic Science. The Division 

shall test the accuracy of the breath-testing 

equipment at least once every six months. 

* * * * * * * 

 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, [and that] the 

equipment on which the breath test was 

conducted has been tested within the past six 

months and has been found to be accurate 

 . . . . 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. 
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the breath test was conducted has been tested within the past six 

months and has been found to be accurate. . . ." Admissibility 

of the certificate as evidence of the facts therein stated is 

premised on attestation "by the individual conducting the breath 

test." That is, under the statute only the test-taker may 

properly attest to the statements contained in the certificate. 

 Among the other statutory requisites, the certificate in the 

present case plainly "indicates" that the breath analysis machine 

was tested and found to be accurate within the proper time frame. 

 Pursuant to the statute, Officer VanLandingham, the test-taker, 

attested to what the certificate indicated, and the court 

admitted the certificate into evidence. 

 Appellant contends that the admission of the certificate was 

error, however, because VanLandingham had no personal knowledge 

of the machine's performance testing. VanLandingham's 

attestation, he contends, is therefore a nullity, rendering the 

certificate inadmissible. We disagree. 

 The Commonwealth is not required to establish a foundation 

for the statements contained in the certificate. Stroupe v. 

Commonwealth, 215 Va. 243, 245, 207 S.E.2d 894, 896 (1974). 

 Manifestly, the General Assembly intended to 

spare the Commonwealth the prosecutorial and 

financial burdens of calling two public 

officers to testify in every drunk driving 

case involving breathalyzer test evidence. 

When the certificate contains what the 

statute requires, the statute makes the 

certificate self-authenticating for purposes 

of admissibility. Once the certificate is 

admitted, the statute makes it evidence of 

the alcoholic content of the blood to be 
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considered with all other evidence in the 

case. But the statute does not make the 

certificate conclusive evidence of the 

statutory regularity of the test. With 

respect to regularity of the test, the 

statute affords the defendant the right to 

prove noncompliance with test procedures. 

Here, defendant had the right to subpoena the 

test operator for that purpose. He chose not 

to exercise that right. Even had he called 

the test operator and proved some prejudicial 

irregularity in test procedures, such proof 

would not have defeated admissibility of the 

certificate but only affected its weight as 

evidence of the alcoholic content of his 

blood. 

Id. Officer VanLandingham's personal knowledge of the required 

test for accuracy affected, if anything, the weight of the 

certificate as evidence, not its admissibility. 

 Appellant argues that Stroupe is distinguishable from the 

present case because the defendant in Stroupe conceded that the 

certificate contained every "averment, datum, signature, and 

attestation specifically required by the statute." 215 Va. at 

244-45, 207 S.E.2d at 896. Appellant's proffered distinction of 

Stroupe is without meaning. Appellant does not, nor could not, 

contend that the certificate lacked an attestation by Officer 

VanLandingham.2

 Rather, appellant's contention is that the 

officer's attestation is not sufficient to establish the 

admissibility of the certificate because she had no personal 

knowledge of the fact to which she attested. In other words, 

 

 2Compare Frere v. Commonwealth, 19 Va. App. 460, 452 S.E.2d 

682 (1995), upon which appellant would like to rely, in which the 

certificate in question contained no attestation clause. 
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appellant argues that no foundation existed for the statements 

contained in the certificate, exactly the issue disposed of by 

Stroupe. 

 In a further attempt to distinguish Stroupe, appellant 

argues that his position would require only the attestor of the 

certificate to have personal knowledge of the statements it 

contained, not the test-taker. Appellant's position is not 

well-taken. Because, under the statute, the test-taker must 

attest to the certificate, appellant's position leads to the 

ineluctable result that the test-taker would have to calibrate 

the machine personally or to witness its calibration and be able 

to testify that it was performed accurately. Such a result would 

be plainly contrary to the intent of the legislature in enacting 

the statute, see Stroupe, 215 Va. at 245, 207 S.E.2d at 896, and 

we decline to accept it. See Branch v. Commonwealth, 14 Va. App. 

836, 839, 419 S.E.2d 422, 424 (1992) ("[T]he plain, obvious, and 

rational meaning of a statute is always preferred to any curious, 

narrow or strained construction . . . ."). 

 Accordingly, we find no error in the trial court's decision 

to admit the certificate of breath analysis. 

 III. 

 Appellant contends the order adjudicating him an habitual 

offender is void because the circuit court lacked jurisdiction to 

enter it. Code § 46.2-356 provides that 

 [n]o license to drive motor vehicles in 

Virginia shall be issued to an habitual 

offender (i) for a period of ten years from 
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the date of any final order of a court . . . 

finding the person to be an habitual offender 

and (ii) until the privilege of the person to 

drive a motor vehicle in the Commonwealth has 

been restored by an order of a court of 

record entered in a proceeding as provided in 

this article. 

Appellant contends that the failure of the court which 

adjudicated him an habitual offender to limit the prohibition on 

his privilege to drive for a period of ten years renders the 

order void. Accordingly, he argues, the trial court erred in 

admitting the habitual offender order into evidence. 

 Code § 46.2-356 is not a jurisdictional limitation on the 

circuit courts. See Manning v. Commonwealth, 22 Va. App. 252, 

255-56, 468 S.E.2d 705, 707 (1996); Davis v. Commonwealth, 12 Va. 

App. 246, 248, 402 S.E.2d 711, 712 (1991). Rather, it directs 

the Department of Motor Vehicles in the issuance of driver's 

licenses to individuals found to be habitual offenders. 

Accordingly, we find no merit in appellant's argument that the 

order adjudicating him an habitual offender is void. 

 The decision of the trial court is accordingly affirmed. 

Affirmed.
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Benton, J., concurring in part and dissenting in part. 

 I agree with the majority's conclusion that the order 

adjudicating Carl E. Anderson an habitual offender is not void. 

However, I would hold that the trial judge erred in admitting the 

certificate of Anderson's breath test analysis into the evidence. 

 Accordingly, I would reverse Anderson's DUI conviction. 

 The admissibility of a certificate of analysis in a 

prosecution for a violation of Code § 18.2-266 is controlled by 

Code § 18.2-268.9, which provides in relevant part as follows: 

 Any individual conducting a breath test 

under the provisions of [Code] § 18.2-268.2 

shall issue a certificate which will indicate 

that . . . the equipment on which the breath 

test was conducted has been tested within the 

past six months and has been found to be 

accurate . . . . This certificate, when 

attested by the individual conducting the 

breath test, shall be admissible . . . . 

Id. (emphasis added). A proper attestation by the individual who 

conducted the breath test is required before the certificate can 

be admitted under Code § 18.2-268.9 as an exception to the rule 

against hearsay. Cf. Gray v. Commonwealth, 220 Va. 943, 945, 265 

S.E.2d 705, 706 (1980); Frere v. Commonwealth, 19 Va. App. 460, 

465, 452 S.E.2d 682, 686 (1995) ("[I]n order to be admissible as 

an exception to the hearsay rule, a certificate introduced under 

[a similar statute] must bear the examiner's signature as part of 

an attestation clause included on the certificate."). Thus, the 

validity of the attestation affects not just the weight of the 

evidence, but its admissibility. Id.
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 Anderson was tested on August 16, 1995. Officer Carla 

VanLandingham, the individual who conducted the breathalyzer test 

and signed the certificate, testified that she had not tested the 

breathalyzer machine because she was "not allowed access to 

that." The certificate, which was printed by the breathalyzer 

machine, stated that the machine "was tested for accuracy" on 

April 19, 1995. However, when Officer VanLandingham was asked on 

cross-examination, "You don't have any personal knowledge that 

[the test was performed]," she answered, "I wasn't there when it 

was done, that is correct." Thus, the sole basis for Officer 

VanLandingham's testimony that the machine had been tested within 

the last six months was the report given by the machine itself. 

 "The preparer's signature on an attestation clause . . . 

serve[s] the purpose of officially certifying the genuineness and 

accuracy of the certificate's contents, a result that a mere 

signature cannot achieve." Frere, 19 Va. App. at 465, 452 S.E.2d 

at 686. Indeed, the plain meaning of the word, "attest," is 

"[t]o affirm to be correct." The American Heritage Dictionary

140 (2d ed. 1991). Officer VanLandingham's testimony proved that 

she did not have personal knowledge that the machine had been 

tested other than her knowledge gained from the report given by 

the machine. 

 When a witness A on the stand testifies, "B 

told me that event X occurred," . . . [h]e 

may be regarded as asserting the event upon 

his own credit, i.e., as a fact to be 

believed because he asserts that he knows it. 

 But when it thus appears that his assertion 

is not based on personal observation of event 
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X, his testimony to that event is rejected, 

because he is not qualified by proper sources 

of knowledge to speak to it. This involves a 

general principle of testimonial knowledge 

 . . . . 

5 John Henry Wigmore, Wigmore on Evidence § 1361 (James H. 

Chadbourn rev. 1974). 

 When Officer VanLandingham testified that she made the 

attestation because the machine "told" her that it had been 

tested for accuracy, she revealed that her attestation was based 

merely upon the machine's report and not her own personal 

observation. Thus, Officer VanLandingham was not competent to 

attest that the machine had been tested because she was "not 

qualified . . . to speak to" the matter. Id. Simply put, her 

attestation was invalid. 

 Moreover, the machine's report did not even state that the 

machine was found to be accurate.3 Because Officer VanLandingham 

 

 3No evidence proved that when the machine was tested for 

accuracy by the Division of Forensic Science on April 19, 1995 it 

was found accurate. 

 The certificate contains the following recitals: 

 DATE TEST CONDUCTED WED AUG. 16, 1995 

 WAS TESTED FOR ACCURACY 

 BY THE DIVISION OF FORENSIC 

 SCIENCE ON WED APR. 19, 1995 

 Officer VanLandingham's attestation clause is the place that 

contains the boiler plate statement "that the equipment . . . has 

been tested within the past six months and found to be accurate." 

 However, that attestation was worthless because Officer 

VanLandingham testified that "[she] wasn't there when it was 

done." She had no basis in fact to make that attestation. 

Furthermore, nothing in the boiler plate language of the 

attestation clause states that when the machine was tested on 
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did not have independent personal knowledge that the equipment 

had been tested and clearly had no basis to conclude that the 

machine had been found to be accurate, I would hold that the 

certificate was not properly attested as required by Code § 18.2-

268.9. Thus, I would hold that the trial judge improperly 

admitted the certificate into the evidence. 

 The majority states that "[Anderson] argues that there was 

no foundation for the statements contained in the certificate, 

exactly the issue disposed of by Stroupe." The majority misses 

the distinction between this case and Stroupe v. Commonwealth, 

215 Va. 243, 207 S.E.2d 894 (1974). In Stroupe, the defendant 

"conced[ed] that the certificate contained every . . . 

attestation specifically required by the statute" but "argue[d] 

that [the attestations] were simple conclusions and that the 

certificate was inadmissible until the Commonwealth had called 

the test operator to prove the foundation for the conclusions." 

Id. at 244-45, 207 S.E.2d at 896 (emphasis added). No evidence 

or argument in Stroupe challenged the validity of the 

attestation. See id. Rather, Stroupe argued that, in addition 

to meeting the statutory attestation requirements, the 

Commonwealth also was required to prove by independent evidence a 

foundation for the conclusions contained in the certificate. See

id. at 245, 207 S.E.2d at 896. The Supreme Court held that the 

General Assembly specifically intended to "spare the Commonwealth 

(..continued) 

April 19, 1995, it was accurate. 
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[that] . . . burden[]." Id. 

 Anderson, however, disputes the validity of the attestation. 

 The testimony of Officer VanLandingham showed that the 

attestation she made was not based upon her own knowledge. 

Anderson does not argue that the Commonwealth should be required, 

in every case, to prove by independent evidence the foundation 

for the statements in the certificate. Rather, Anderson argues 

that where, as here, the evidence proves that the attestation was 

not based upon the maker's own knowledge and is thus "a mere 

signature," Frere, 19 Va. App. at 465, 452 S.E.2d at 686, the 

attestation fails to meet the requirements of Code § 18.2-268.9 

and the certificate is inadmissible. The difference between 

Anderson's argument and Stroupe's argument is substantive, not 

merely semantic. 

 Finally, the majority asserts that requiring the individual 

who makes the attestation to obtain personal knowledge that the 

machine has been tested and found to be accurate within the past 

six months would conflict with the intent of the General 

Assembly. I disagree. "[T]he General Assembly intended to spare 

the Commonwealth the prosecutorial and financial burdens of 

calling two public officers to testify in every drunk driving 

case involving breathalyzer test evidence." Stroupe, 215 Va. at 

245, 207 S.E.2d at 896 (emphasis added). The General Assembly 

did not intend to spare the officer who conducts the test the 

burden of having personal knowledge that the machine was tested 
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and found to be accurate within the last six months. I find no 

evidence that the General Assembly intended to dispense with the 

requirement that the maker of the attestation have personal 

knowledge that the facts to which the maker attests are true. 

 For these reasons, I dissent. I would reverse the 

conviction and remand for a new trial.