COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Cl ements and Beales Argued at Richmond, Virginia

KI-HO MIN, S/K/A JOHN MIN, MEMORANDUM OPINION * BY v. Record No. 2594-06-2 JUDGE JEAN HARRISON CLEMENTS MARCH 25, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Cleo E. Powell, Judge Denis C. Englisby (Englisby, Englisby, Vaughn & Englisby, on brief), for appellant. Robert H. Anderson, III, Seni or Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Ki-Ho Min (appellant) was convicted in a benc h trial of driving wh ile intoxicated (DWI) in violation of Code § 18.2-266. On appeal, appe llant contends the trial court erred in admitting a certificate of blood alcohol an alysis (BAC). Finding no error, we affirm appellant’s conviction. As the parties are fully conversant with th e record in this case, and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties’ understandin g of the disposition of this appeal. Appellant was charged with driving while intoxicated with a bl ood alcohol level of .18, based on the results of a blood alcohol breath analysis, administered by a “booking tech” and

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - certified in the BAC. In a pre-trial moti on, appellant moved the trial court to suppress “any . . . certificates anticipated to be in troduced by the Commonwealth against [him] in violation of his constitutional ri ghts guaranteed by the Fourth, Fift h and/or Sixth Amendments.” The motion was ultimately denied. Appellant di d not subpoena the booking tech or anyone else involved in the production of the BAC. Trial commenced on July 27, 2006. The arresting officer was the sole prosecution witness, and the BAC was admitted into evidence over appellant’s continuing objection that its admission violated his Sixth Amendment rights. Appellant was convicted as charged, and this appeal followed. Appellant argues that, because the BAC represented testimonial evidence, the admission of the BAC violated his constituti onal right of confrontation. See Crawford v. Washington , 541 U.S. 36, 68 (2004) (“Where [the admission of] testimonial [hearsay] evidence is at issue, . . . the Sixth Amendment demands what the common law re quired: unavailability [of the out of court declarant] and a prior opportunity for cross-examin ation.”). In consideri ng the issues he raises, we assume without deciding that the BA C represents testimonial evidence. Cf. Luginbyhl v. Commonwealth , 48 Va. App. 58, 64, 628 S.E.2d 74, 78 (2006) (assuming without deciding, pursuant to a harmless error anal ysis, that the results of a br eath alcohol analysis and its accompanying certificate represent testimonial hearsay for purposes of Crawford ). Code § 19.2-187 provides as follows: In any hearing or trial of any criminal offense, . . . a certificate of analysis of a person performing an analysis or examination, performed in any la boratory operated by the Division of Consolidated Laboratory Services or the Department of Forensic Science or authorized by such Department to conduct such analysis or examination, or performe d by the Federal Bureau of Investigation, the federal Postal Inspection Service, the federal Bureau of Alcohol, Tobacco and Firearms, the Naval Criminal Investigative Service, the National Fish and Wildlife Forensics Laboratory, the federal Drug Enfo rcement Administration, or the- 3 - United States Secret Service Laboratory when such certificate is duly attested by such person, sha ll be admissible in evidence as evidence of the facts therein stated and the results of the analysis or examination referred to therein . . . . Pursuant to Code § 19.2-187.1, an accused has “the right to call the person performing such analysis or examination or involved in the ch ain of custody as a witness therein, and examine him in the same manner as if he had b een called as an adve rse witness.” In Brooks v. Commonwealth , 49 Va. App. 155, 168-69, 638 S.E.2d 131, 138 (2006), we held—with respect to evidence admitted pursuant to Code § 19.2-187—that the constitutional right to confrontation is subject to waiver when an accused fails to avai l himself of his statutory right to subpoena the person who performed the analysis. See Magruder v. Commonwealth , __ Va. __, __, __ S.E.2d __, __ (Feb. 29, 2008) (“[T]he procedure in Code § 19.2-187.1 adequately safeguards a criminal defendant’s rights under the Confr ontation Clause and [a] defendant[’ s] failure . . . to utilize that procedure waived [his] right to . . . en joy the elements of confrontation.”). Brooks and Magruder control our resolution of the present issue. Because appellant did not subpoena the booking tech, he waived his opport unity to cross-examine potential witnesses. The trial court therefore did not violate his c onstitutional rights when it admitted the BAC in accordance with the terms of Code § 19.2-187. Appellant nevertheless cont ends for the first time on appeal that our holding in Brooks 1 is inapplicable here because Brooks addressed the admission of a certificate of analysis in a prosecution for possession of a controlled substance. He now asserts that a BAC is “factually distinctive,” and argues that the provisions of Code §§ 19.2-187 and 19.2-187.1 will not “save[] the day for [a] prosecutor” seeking the admission of a BAC in a DWI case. Also for the first

1 Briefs and argument in the present case we re completed prior to the publication of the Supreme Court of Virg inia’s decision in Magruder . However, appellant’s arguments under Brooks apply with equal merit under Magruder

.- 4 - time on appeal, appellant claims that BAC evidence is not “covered” under Code § 19.2-187 because the BAC here was not performed by one of the entities explicit ly designated therein. Pursuant to Rule 5A:18, “a specific argument must be made to the trial court at the appropriate time, or the allegati on of error will not be considered on appeal. A general argument or an abstract reference to the law is not sufficient to preserve an issue.” Edwards v. Commonwealth , 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc) (citations omitted), aff’d by unpublished order , No. 040019 (Va. Oct. 15, 2004); see also Thomas v. Commonwealth , 44 Va. App. 741, 750, 607 S.E.2d 738, 742, adopted upon reh’g en banc , 45 Va. App. 811, 613 S.E.2d 870 (2005) (“[The objection] must be bot h specific and timely—so that the trial judge would know the particular point being made in time to do something about it.”). As these arguments were not presented before the trial court, we will not c onsider them now. And although Rule 5A:18 contains exceptions for good cause or to meet the ends of justice, appellant does not argue that we should invoke thes e exceptions. “We will not consider, sua sponte , a ‘miscarriage of justice’ argument under Rule 5A:18.” Edwards , 41 Va. App. at 761, 589 S.E.2d
at 448. Finding each of appellant’s arguments to be without merit or procedurally barred, we affirm his conviction. Affirmed.