COURT OF APPEALS OF VIRGINIA

Present: Chie f Judge Fitzpatr ick, Judges El der and Clements Argued at Rich mond, Virginia

JAMES M. HEGEDUS MEMORANDUM OPINION * BY v. Record No. 2732-00-3 JU DGE JEAN HARR ISON CLEMENTS OCTOBER 30, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF BUENA VISTA Humes J. Franklin, Jr., Judge H. David Natkin for appellant. Kathleen B. Martin , Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. James M. Hegedus wa s convicted in a benc h trial of driving under the influenc e of alcohol, a misdemea nor, in vi olation of Code § 18.2-266. The sole issue on appeal is whether the trial court erred in admittin g into evidence the ce rtificate of breath analysis where the mach ine used to me asure the alcoho l content of Hegedus' breath ha d not been calibrated in strict compliance with the regulations es tablished by the Departme nt of Criminal Justice Services, Divi sion of Forensic Science. Finding no error, we affirm the conviction. As the parties are fu lly conversant with the record in this case and because this memorandum opinion carr ies no precedentialvalue, this opin ion recites only those facts and in cidents of the proceedings as necess ary to the parties' understandin g of the disposition of this appeal. The evidence is before us on an agreed statem ent of facts. On April 3, 2000, Offi cer Darrell M. Slagle , of the Buena Vista Police Department, cl ocked Hegedus tr avelling forty-three miles per hour in a tw enty-five mile-p er-hour zone. Officer Slagle stopped Hegedus and subsequently placed him un der arrest for driving under th e influence of alcohol in violation of Code § 18.2-266. Thereafter, Of ficer Slagle administer ed a breath -analysis test to Hegedus using the Intoxily zer 5000 machine. The officer conducted the te st in accordance with the training he had received for the Intoxilyze r 5000 machine. Pursuant to th at training, the validation test of th e machine was pe rformed before, rather than after, Hegedus gave a sample of his breath. Upon completion of the breath-ana lysis test, the ma chine showed that Hegedus had a blood alcohol cont ent of ".09 gram s per 210 liters of breath." The only issue before us on appeal is He gedus' claim that the trial court erred in admitting the certificate of br eath analysis into evidence becaus e, although the subject breath test was performed in accordan ce with the officer' s training for the Intoxilyzer 50 00, the test was not conduc ted in strict compliance

- 2 -with administrative regu lation 1 VAC 30-50-90(C), 1 which re quired that the validation te st of the mach ine be performe d immediately after, rather than before, the breath sample is given. We addressed th e same issue in Rollins v. Commonwealth , ___ Va. App. ___, ___ S.E. 2d ___ (2001), decided this da y. In that case, Rollins argu ed, like Hegedus, that th e operator's failure to conduct the vali dation test of the In toxilyzer 5000 machine immediately afte r the breath analysis, as specifically required by 1 VAC 30-50-90(C), rendered the certificate of breath analysis inadmissible. We held, however, that, because the breath-test methods set forth by the Department of Criminal Ju stice Services, Division of Fore nsic Science in 1 VAC 30 -50-90 were procedural, rather than substantive, in natu re, substantial, rather than strict, complian ce with those method s was sufficient. Id. at ___, ___ S.E.2d at ___. We further concluded that the trial court properly admitted th e certificate of breath analysis into evidence, beca use the Intoxilyze r 5000 machine op erator in that case, "having admi nistered the breath-analy sis test to Rollins in accordance with 1 VAC 30-50-90(A), substantially co mplied with the breath-test meth ods approved by th e Department of Criminal Justice Services, Divisi on of Forensic Science." Id. at ___, ___ S.E.2d at ___.

1 Although applicable to this case, 1 VAC 30-50-90 has since been amended and renumbered as 6 VAC 20-190-110(3). - 3 -The same reasoning and conclusion s are equally applicable here. Thus, for the reasons more partic ularly stated in Rollins , we affirm Hegedus' conviction. Affirmed.

- 4 -