COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Frank and Senior Judge Hodges 

Argued at Richmond, Virginia 

DAVID EDWARD POLLARD 

 MEMORANDUM OPINION* BY 

v. Record No. 2638-98-2 JUDGE LARRY G. ELDER 

 SEPTEMBER 21, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

John F. Daffron, Jr., Judge 

 Fredrick S. Kaufman (Nachman & Kaufman, 

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

 H. Elizabeth Shaffer, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 David Edward Pollard (appellant) was convicted in a bench 

trial for driving under the influence of alcohol, his third such 

conviction in five years, in violation of Code § 18.2-266. On 

appeal, he contends the trial court erroneously admitted the 

results of a breathalyzer test into evidence. He argues 

credible evidence establishes, contrary to testing requirements, 

that he had cigarette tobacco in his mouth before and during the 

test and that cigarette tobacco contains alcohol likely to have 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.
- 2 - 

skewed the test results.1 For the reasons that follow, we affirm 

appellant's conviction. 

 "'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.'" 

James v. Commonwealth, 18 Va. App. 746, 753, 446 S.E.2d 900, 904 

(1994) (quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371 

S.E.2d 838, 842 (1988) (citation omitted)). Ordinarily, 

 [t]he measure of the burden of proof with 

respect to factual questions underlying the 

admissibility of evidence is proof by a 

preponderance of the evidence. . . . In 

determining whether the Commonwealth has met 

its burden, the trial court, acting as a 

fact finder, must evaluate the credibility 

of the witnesses, resolve the conflicts in 

their testimony and weigh the evidence as a 

whole. Its factual finding "is to be given 

the same weight by the appellate court as is 

accorded the finding of fact by a jury." 

 1

 The only issue raised by appellant in regard to the 

breathalyzer results was its admission into evidence. The 

precise issue on which this appeal was granted was "[w]hether 

the court erred in ruling the Certificate of Analysis admissible 

when the defendant presented evidence of having chewed cigarette 

tobacco between the time of his arrest and the time of the 

analysis." To the extent that appellant now attempts to 

challenge the underlying reliability or accuracy of the 

breathalyzer itself, rather than the breath sample it analyzed, 

or the sufficiency of the evidence to support his conviction, no 

appeal was granted on either of these issues. Therefore, we do 

not consider them on appeal. See Rule 5A:12(c); Cruz v. 

Commonwealth, 12 Va. App. 661, 664 n.1, 406 S.E.2d 406, 407 n.1 

(1991). 
- 3 - 

Albert v. Commonwealth, 2 Va. App. 734, 738, 347 S.E.2d 534, 536 

(1986) (quoting Witt v. Commonwealth, 215 Va. 670, 674, 212 

S.E.2d 293, 296-97 (1975) (citations and footnote omitted)). 

 Code § 18.2-268.2 provides, in relevant part, that "[a]ny 

person . . . arrested for a violation of § 18.2-266(i) or (ii) 

. . . shall submit to a breath test. If the breath test is 

unavailable or the person is physically unable to submit to the 

breath test, a blood test shall be given." Under Code 

§ 18.2-268.9, "[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." The code also 

provides, however, that 

[t]he 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. 

Code § 18.2-268.11. The Commonwealth bears the burden of 

proving substantial compliance with the statutes' requirements. 
- 4 - 

See Snider v. Commonwealth, 26 Va. App. 729, 732, 496 S.E.2d 

665, 666 (1998). In evaluating whether the test as administered 

substantially complied with the governing regulations, the trial 

court is entitled to consider testimony before it regarding the 

impact of the testing procedures on the reliability of the 

outcome. See Hudson v. Commonwealth, 21 Va. App. 184, 186, 462 

S.E.2d 913, 914 (1995) (reversing conviction because 

Commonwealth failed to present any evidence permitting finding 

of substantial compliance). 

 Here, appellant contends, in essence, that the Commonwealth 

failed to prove substantial compliance with statutory 

requirements for administering the breath test because the 

evidence established he had cigarette tobacco in his mouth 

before and during the test and the Commonwealth failed to prove 

that alcohol in the tobacco did not skew the breathalyzer 

results. As a result, he argues, the trial court erred in 

admitting the breathalyzer test results. We reject this 

contention and hold that the evidence supports a finding of 

substantial compliance, permitting admission of the results 

under Code § 18.2-268.11. 

 Assuming without deciding that appellant had the cigarette 

tobacco in his mouth during the twenty-minute observation period 

or during the test itself, this fact does not render the 

resulting certificate of analysis inadmissible. Pursuant to 

Code § 18.2-268.11, as set out above, "[s]ubstantial compliance 
- 5 - 

[with the procedures for taking a breath sample] shall be 

sufficient. Failure to comply with any steps or portions 

thereof . . . shall go to the weight of the evidence and shall 

be considered with all the evidence in the case." Here, the 

evidence permitted a finding, by at least a preponderance of the 

evidence, that any alcohol in appellant's mouth did not skew the 

breath test results and, therefore, that appellant's breath test 

substantially complied with statutory requirements for its 

admission into evidence. The information contained in the 

manual for the Intoxilyzer 5000 breathalyzer machine indicates 

that the presence of "mouth alcohol" in the sample will cause a 

spike in the breath sample curve which, in turn, will cause the 

machine to report an "INVALID SAMPLE." Because Officer Kifer 

confirmed that the machine did not report an invalid sample in 

appellant's case, the evidence supported a finding that the test 

substantially complied with the statute, and the trial court did 

not err in admitting the test results into evidence. Appellant 

was permitted, in compliance with the statute, "to introduce 

evidence on his own behalf to show noncompliance with the 

aforesaid procedures . . . and that as a result his rights were 

prejudiced." Code § 18.2-268.11. 
- 6 - 

 For these reasons, we hold that the trial court did not err 

in denying appellant's motion to suppress the certificate. 

Therefore, we affirm appellant's conviction. 

 Affirmed.