COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Elder and Clements 

Argued at Richmond, Virginia 

JOHN H. ROLLINS, S/K/A 

 JOHN HENRY ROLLINS 

 OPINION BY 

v. Record No. 2378-00-2 JUDGE JEAN HARRISON CLEMENTS 

 OCTOBER 30, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ORANGE COUNTY 

 Daniel R. Bouton, Judge 

 Charles W. Bowman (Higginbotham & Bowman, 

P.L.C., on brief), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 John H. Rollins was convicted in a bench trial of driving 

under the influence of alcohol in violation of Code § 18.2-266, 

his fourth such offense within ten years. The sole issue on 

appeal is whether the trial court erred in admitting into 

evidence the certificate of breath analysis where the machine 

used to measure the alcohol content of Rollins' breath had not 

been calibrated in strict compliance with the regulations 

established by the Department of Criminal Justice Services, 

Division of Forensic Science. Finding no error, we affirm the 

conviction. 
BACKGROUND 

 The facts before us are not in dispute. On February 5, 

2000, Gordonsville Police Officer John Apperson was on routine 

patrol when he received a radio call reporting a Ford Ranger 

pickup truck driving erratically on Main Street. Apperson 

located the identified Ford Ranger pickup truck and followed it. 

He observed it "cross[] the yellow line a couple of times" and 

"cross[] over the white line almost striking the guard rail." 

Apperson activated his vehicle's emergency lights, and the 

pickup truck pulled to the side of the road. Apperson 

identified Rollins as the driver of the pickup truck. 

 When Apperson approached the pickup truck, Rollins rolled 

down his window. The officer immediately smelled "a strong odor 

of alcoholic beverage." Apperson asked Rollins for his license 

and registration, which Rollins provided. When asked how much 

he had had to drink, Rollins replied that he had had "two 

beers." Apperson told Rollins to get out of the pickup truck. 

Upon exiting the pickup truck, Rollins stumbled and had to be 

steadied as he walked to the back of the truck. Apperson 

observed that Rollins' face was "very red" and his eyes were 

"bloodshot and glassy." 

 Apperson administered four field sobriety tests. When 

asked to recite the alphabet, Rollins could not. Likewise, he 

failed to successfully perform the "finger-touch" test, the 

"one-legged-stand" test, and the "finger-to-nose" test. 

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Apperson then gave Rollins a preliminary breath test. Following 

the completion of that test, Apperson read Rollins the implied 

consent law, placed him under arrest, and drove him to the 

Central Virginia Regional Jail. 

 There, Deputy Duane Washington, of the Orange County 

Sheriff's Department, read Rollins the implied consent law, 

obtained Rollins' consent, and administered a breath-analysis 

test to Rollins using the Intoxilyzer 5000 machine. According 

to the machine, Rollins, who had had nothing to eat or drink 

between the time he was stopped by Officer Apperson and when he 

was given the breath-analysis test at the jail, had a blood 

alcohol content of ".18 grams per 210 liters of breath." 

 At trial, Deputy Washington, who was licensed to conduct 

breath-test analyses, explained that, in administering the 

breath-analysis test to Rollins, he followed the procedure set 

forth in the instruction manual published by the Division of 

Forensic Science specifically for the Intoxilyzer 5000 machine. 

Washington affirmed that he completed, and the machine 

performed, all of the steps exactly as outlined in the manual. 

He swiped his operator identification card through the machine's 

card reader. Using the machine's keyboard, he entered his name 

and information and Rollins' name and information. The machine 

automatically performed several internal diagnostic tests on its 

own, including a "PROM-check" test and a "circuitry-check" test. 

The machine took an "air blank" to determine the alcohol content 

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of the surrounding air and ran a "simulator" test with a control 

sample. This, according to Washington, is also referred to as a 

"validation." The machine took another "air blank" to confirm 

the alcohol content of the air in the room. Rollins then blew 

as directed into the machine's mouthpiece. The machine took 

another "air blank" to reconfirm the alcohol content of the room 

air. Finally, Rollins blew again as directed into the machine's 

mouthpiece, and the test was concluded. As each step of the 

test was completed, Deputy Washington checked the corresponding 

number on the Department of Criminal Justice Services, Division 

of Forensic Science's operational checklist for the Intoxilyzer 

5000. 

 Following the breath-analysis test, the Intoxilyzer 5000 

machine printed the aforementioned result onto a "Department of 

Criminal Justice Services, Division of Forensic Science 

Certificate of Blood Alcohol Analysis." Deputy Washington 

completed the certificate of breath analysis by executing the 

certificate's attestation clause, which read: 

I certify that the above is an accurate 

record of the test conducted; that the test 

was conducted with the type of equipment and 

in accordance with the methods approved by 

the Department of Justice Services, Division 

of Forensic Science; that the test was 

conducted in accordance with the Division's 

specifications; that the equipment upon 

which the breath test was conducted has been 

tested within the last six months and found 

to be accurate; that prior to administration 

of the test the accused was advised of his 

right to observe the process and see the 

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blood alcohol reading on the equipment used 

to perform the breath test, and that I 

possess a valid license to conduct such 

test, given under my hand this 5[th] day of 

February, 2000. 

 At trial, the Commonwealth offered the certificate of 

breath analysis for admission into evidence under Code 

§ 18.2-268.9. Rollins objected to its admission, arguing that 

the Intoxilyzer 5000 machine used to perform the breath-analysis 

test had not been properly calibrated in strict compliance with 

administrative regulation 1 VAC 30-50-90(C). The trial court 

overruled Rollins' objection and admitted the certificate into 

evidence, finding that, although the machine had not been 

calibrated in compliance with 1 VAC 30-50-90(C), it had been 

properly calibrated under 1 VAC 30-50-90(A). Such compliance, 

the court concluded, was sufficient because the regulation was 

procedural, rather than substantive, in nature. The trial court 

subsequently convicted Rollins, who presented no evidence in his 

defense, of driving under the influence of alcohol in violation 

of Code § 18.2-266. Because it was Rollins' fourth such offense 

within ten years, the offense was a felony under Code 

§ 18.2-270(C). 

ANALYSIS 

 On appeal, Rollins concedes that, in administering the 

subject breath-analysis test, Deputy Washington followed the 

procedures set forth in the instruction manual for the 

Intoxilyzer 5000 and, thus, complied with 1 VAC 30-50-90(A). 

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Rollins contends, however, that the certificate of breath 

analysis was improperly admitted by the trial court because no 

validation test with a control sample was performed on the 

Intoxilyzer 5000 machine immediately following the analysis of 

his breath, as specifically required by 1 VAC 30-50-90(C). 

Compliance with the regulation, Rollins argues, is mandatory and 

Deputy Washington's failure to do so rendered the certificate of 

breath analysis inadmissible. 

 The Commonwealth concedes that Deputy Washington did not 

comply with 1 VAC 30-50-90(C). The Commonwealth contends, 

however, that, because the breath-test methods set forth by the 

Department of Criminal Justice Services, Division of Forensic 

Science in subsections (A) and (C) of 1 VAC 30-50-90 were 

procedural in nature and not substantive, and because Deputy 

Washington substantially complied with those prescribed methods, 

the trial court correctly ruled that the certificate of breath 

analysis was admissible. We agree with the Commonwealth. 

 "The admissibility of evidence is within the broad 

discretion of the trial court, and a ruling will not be 

disturbed on appeal in the absence of an abuse of discretion." 

Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 

(1988). "[A] trial court 'by definition abuses its discretion 

when it makes an error of law.'" Shooltz v. Shooltz, 27 Va. 

App. 264, 271, 498 S.E.2d 437, 441 (1998) (quoting Koon v. 

United States, 518 U.S. 81, 100 (1996)). In determining whether 

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the trial court made an error of law, "we review the trial 

court's statutory interpretations and legal conclusions de

novo." Timbers v. Commonwealth, 28 Va. App. 187, 193, 503 

S.E.2d 233, 236 (1998). 

 Code § 18.2-268.9 provides that, "[t]o be capable of being 

considered valid as evidence in a prosecution under § 18.2-266 

. . ., chemical analysis of a person's breath shall be performed 

. . . in accordance with methods approved by the Department of 

Criminal Justice Services, Division of Forensic Science." As 

applicable to this case, the breath-test methods approved by the 

Department of Criminal Justice Services, Division of Forensic 

Science were set forth in 1 VAC 30-50-90,1 which provided, in 

pertinent part, as follows: 

The division approves the following breath 

test methods and procedures: 

A. All breath test devices shall be 

operated in accordance with those sections 

of the instructional manual published by the 

division that are applicable to the 

particular breath test device. Licensees 

shall follow any additional instructions or 

modifications of instructions published by 

the division in supplements to the foregoing 

instructional manual. 

* * * * * * * 

C. The licensee shall verify that the 

breath test device is properly calibrated 

and in proper working order by conducting a 

room air blank analysis prior to analysis of 

the breath of the person and by conducting a 

 

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1

 1 VAC 30-50-90 has since been amended and renumbered as 6 

VAC 20-190-110(3). 
validation test with a control sample 

immediately following the analysis of the 

breath of the person. 

 Code § 18.2-268.11 provides, in pertinent part: 

 The steps set forth in §§ 18.2-268.2 

through 18.2-268.9 relating to taking, 

handling, identifying, and disposing of 

blood or breath samples are procedural and 

not substantive. Substantial compliance 

shall be sufficient. Failure to comply with 

any steps or portions thereof . . . shall 

not of 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.2

(Emphasis and footnote added.) 

 We conclude, reading Code §§ 18.2-268.9 and 18.2-268.11 

together, that the legislature did not intend that strict 

compliance with the breath-test methods approved by the 

Department of Criminal Justice Services, Division of Forensic 

Science be a prerequisite for the admission into evidence of the 

results of a breath-analysis test. Substantial compliance with 

those methods is sufficient. See Snider v. Commonwealth, 26 Va. 

App. 729, 732, 496 S.E.2d 665, 666 (1998). Accordingly, 1 VAC 

30-50-203 provided: 

 2

 We note, as an aside, that Rollins introduced no evidence 

showing that his rights were prejudiced. 

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3

 1 VAC 30-50-20 is now 6 VAC 20-190-20. 
These regulations and the steps set forth 

herein relating to the taking, handling, 

identification and disposition of breath 

samples, the testing of such samples, and 

the completion and filing of any form or 

record prescribed by these regulations are 

procedural in nature and not substantive. 

Substantial compliance therewith shall be 

deemed sufficient. 

 The sole remaining issue before us, then, is whether Deputy 

Washington substantially complied with the breath-test methods 

approved by the Department of Criminal Justice Services, 

Division of Forensic Science when he, in conducting the 

breath-analysis test on Rollins using the Intoxilyzer 5000, 

complied with 1 VAC 30-50-90(A), but not with 1 VAC 30-50-90(C). 

We hold that he did. 

 "[I]n determining the question of substantial compliance, 

'a minor, trivial difference can be tolerated whereas a material 

difference cannot.'" Snider, 26 Va. App. at 732, 496 S.E.2d at 

666 (quoting Akers v. James T. Barnes of Washington, D.C., Inc., 

227 Va. 367, 370, 315 S.E.2d 199, 201 (1984)). Furthermore, as 

the Supreme Court noted in Coleman v. Pross, 219 Va. 143, 158, 

246 S.E.2d 613, 622 (1978), "[t]he principle of substantial 

compliance, which is predicated upon a failure of strict 

compliance with applicable requirements, operates to replace the 

protective safeguards of specificity with a less exacting 

standard of elasticity, in order to achieve a beneficial and 

pragmatic result." 

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 Here, requiring strict compliance with both 1 VAC 

30-50-90(A) and 1 VAC 30-50-90(C) would lead to a decidedly 

impractical result. In fact, as applied to the Intoxilyzer 5000 

machine, 1 VAC 30-50-90(A) and 1 VAC 30-50-90(C) inherently 

conflict because an operator cannot strictly comply with both. 

The Intoxilyzer 5000 instruction manual, written and published 

by the Department of Criminal Justice Services, Division of 

Forensic Science specifically to show operators how to obtain 

the most reliable and accurate results using the Intoxilyzer 

5000 machine, does not provide or allow for a validation test 

with a control sample immediately following the breath analysis. 

That test, according to the Intoxilyzer 5000 manual, is to be 

performed by the machine shortly before the analysis. 

 Moreover, once the operator conducting the breath-analysis 

test keys in the requested information about the subject, the 

Intoxilyzer 5000 machine functions automatically. With no 

further human intervention, the machine performs several 

internal tests — including the validation test — before the 

subject blows into the mouthpiece. The automatic nature of the 

machine does not permit the operator to deviate from the set 

procedure to conduct a validation test after the breath analysis 

is performed. 

 Thus, an operator who, like Deputy Washington, follows the 

Intoxilyzer 5000 manual in accordance with subsection (A) of 1 

VAC 30-50-90 cannot perform the additional step required by 

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subsection (C) of 1 VAC 30-50-90. Furthermore, even if the 

operator could somehow override the set procedure and conduct a 

validation test immediately after the analysis, that operation 

would not be in accordance with the instruction manual, as 

required by 1 VAC 30-50-90(A). 

 Hence, we conclude, upon our review of the record, that to 

rule as Rollins suggests we do would lead to absurd consequences 

inconsistent with the beneficial and pragmatic result intended 

by the legislature. See Branch v. Commonwealth, 14 Va. App. 

836, 419 S.E.2d 422 (1992). We further conclude that whether 

the validation test is performed shortly before the breath 

analysis, as required by the manual, or immediately after the 

breath analysis, as required by 1 VAC 30-50-90(C), is a trivial 

difference. Each achieves the same purpose of ensuring that the 

breath-test machine is "properly calibrated and in proper 

working order." 1 VAC 30-50-90(C). 

 We hold, therefore, that Deputy Washington, having 

administered the breath-analysis test to Rollins in accordance 

with 1 VAC 30-50-90(A), substantially complied with the 

breath-test methods approved by the Department of Criminal 

Justice Services, Division of Forensic Science. Accordingly, 

the resulting certificate of breath analysis was admissible as 

valid evidence under Code § 18.2-268.9, and the trial court did 

not abuse its discretion in admitting it. 

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 For these reasons, we affirm Rollins' conviction. 

 Affirmed.

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