COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Fitzpatrick and Annunziata 

Argued at Alexandria, Virginia 

STEPHEN CLYDE MOTTERN 

 MEMORANDUM OPINION* BY 

v. Record No. 1691-95-4 JUDGE ROSEMARIE ANNUNZIATA 

 OCTOBER 29, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Benjamin N. A. Kendrick, Judge 

 Tracy A. Thompson (Powell & Thompson, P.C., 

on brief), for appellant. 

 John H. McLees, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Following a bench trial, appellant, Stephen Clyde Mottern, 

was convicted of driving while intoxicated. Appellant contends 

the trial court erred in denying his request for a continuance to 

secure the presence of two individuals who witnessed his arrest. 

 We disagree and affirm. 

 I. 

 On the early morning of July 6, 1994, appellant was arrested 

for driving while having a blood alcohol concentration in excess 

of .08 percent. Michelle and J. R. Thornton accompanied 

appellant at the time. The Thorntons were stationed in Germany 

with the United States Air Force and were on leave in the United 

States. On July 13, 1994 appellant requested an expedited trial 

to ensure the presence of his witnesses, the Thorntons. Trial 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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was set for July 19, 1994, at which time appellant and his two 

witnesses appeared. The Commonwealth, however, requested a 

continuance to cure a defect in the breath certificate. The 

motion was denied, and the Commonwealth requested a nolle

prosequi. Appellant was re-arrested and a new trial date was set 

for August 3, 1994. Appellant filed a motion to dismiss on the 

ground that the Thorntons had returned to Germany for an 

indeterminate amount of time. The court entered another nolle 

 prosequi. On September 19, 1994, appellant was directly 

indicted for the same offense. Appellant filed another motion to 

dismiss, in which appellant states 

 [t]he Thorntons were able to provide material 

testimony relative to [appellant's] 

appearance and demeanor, as well as his 

performance of field tests. They also would 

have been able to present material testimony 

contradicting the officers' version of events 

regarding the stop itself. 

Appellant relies on this statement as his proffer to the trial 

court of the Thorntons' expected testimony. The court denied 

appellant's motion to dismiss, but it granted a continuance upon 

appellant's suggestion that the court select a day in July 1995 

for trial. Trial was then set for July 10, 1995. On July 5, 

1995, appellant requested another continuance on the ground that 

the Thorntons would not return to the United States until later 

that year. Appellant stated he was uncertain when the Thorntons 

would return but that the earliest date would be December 1995 or 

January 1996, when their tour of duty was completed. He stated 
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the Thorntons would know their return date by September 1995, and 

he requested a continuance until January 1996. The trial court 

denied appellant's motion for a continuance, and trial was 

conducted July 10, 1995. 

 At trial, Officer Clagett testified that he observed 

appellant stop his vehicle in a lane reserved for taxicabs at 

Washington National Airport. When Clagett honked his horn to get 

appellant's attention to ask him to move, appellant yelled a 

profanity at the officer. Clagett approached appellant and 

directed him to pull over and stop his vehicle. He then 

requested that appellant produce his driver's license and remain 

in his vehicle. Appellant exited his vehicle, and Clagett again 

instructed him to remain inside. Clagett attempted to write a 

traffic summons for appellant, but appellant exited his vehicle 

twice more and approached the officer, shouting profanities at 

him. Clagett called for backup, and Officer Lowery responded. 

Clagett then began to place appellant under arrest for 

obstructing a law enforcement officer. As he placed handcuffs on 

appellant, Clagett noticed that appellant smelled of alcohol. 

Clagett had not detected the odor of alcohol during his initial 

contact with appellant. 

 Officer Lowery testified that appellant smelled of alcohol 

and that his eyes were bloodshot and his speech slow and slurred. 

 Lowery conducted field sobriety tests, and appellant took an 

alco-sensor test. Lowery testified that appellant had no 
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difficulty communicating and that he did nothing to impede the 

administration of the breath test. Following the tests, Clagett 

arrested appellant for driving while intoxicated and transported 

him to Arlington County Detention Center where a breath test was 

administered by Officer Rodriguez. Following the testimony of 

both Officers Clagett and Lowery, appellant attempted to proffer 

the Thorntons' expected testimony. The court, however, sustained 

the Commonwealth's objection that the proffered testimony was 

hearsay. 

 The breath certificate was not admitted into evidence at 

trial, but Rodriguez testified regarding the results of the 

breath test, which indicated .10 grams per 210 liters of breath. 

 Appellant objected to Rodriquez's testimony on the grounds that 

the "Attest" portion of the breath certificate lacked a date and 

that the test was administered in excess of two hours after 

appellant had operated a motor vehicle. The court denied 

appellant's objections. 

 Appellant argued a motion to strike the Commonwealth's 

evidence on the grounds that the police officers had no probable 

cause or reasonable suspicion to believe appellant was under the 

influence of alcohol and that the breath test had been 

administered too late. The court denied appellant's motion. 

Appellant presented no evidence, and the trial court convicted 

him. 

 II. 
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 The decision whether to grant a continuance is committed to 

the sound discretion of the trial court. E.g., Gray v. 

Commonwealth, 16 Va. App. 513, 516, 431 S.E.2d 86, 88 (1993). 

"Where the proponent of a continuance fails to indicate that a 

missing witness is material, there is no abuse of discretion in 

denying the continuance." Id. at 518, 431 S.E.2d at 89; see also

Shifflett v. Commonwealth, 218 Va. 25, 30, 235 S.E.2d 316, 319-20 

(1977); Lacks v. Commonwealth, 182 Va. 318, 323-24, 28 S.E.2d 

713, 716 (1944). 

 Code § 18.2-266(i) prohibits driving while the driver has a 

blood alcohol concentration (BAC) of .08 percent or more as 

indicated by a chemical test administered pursuant to the 

statute. Code § 18.2-268.2(B) provides that any person arrested 

for a violation of Code § 18.2-266(i) shall submit to a breath 

test, the results of which are documented in a certificate issued 

pursuant to Code § 18.2-268.9. The issue under Code 

§ 18.2-266(i) is "not whether a driver was in fact `under the 

influence of alcohol' to a degree that his ability to drive 

safely was affected; rather, the issue is whether at the time he 

was driving his [BAC] was at least [.08] percent." Davis v. 

Commonwealth, 8 Va. App. 291, 298, 381 S.E.2d 11, 15 (1989); 

Lemond v. Commonwealth, 19 Va. App. 687, 693, 454 S.E.2d 31, 35 

(1995). The effect of Code § 18.2-266(i) is to create a 

rebuttable presumption "that the [BAC] while driving was the same 

as indicated by the results of the subsequent test." Davis, 8 
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Va. App. at 300, 381 S.E.2d at 16; Lemond, 19 Va. App. at 693, 

454 S.E.2d at 35. The presumption may be rebutted where, for 

example, the evidence shows that the accused consumed alcohol 

since driving or that the accused had not consumed enough alcohol 

in the relevant time to have reached the level indicated by the 

test results at the time he was driving. See Davis, 8 Va. App. 

at 300, 381 S.E.2d at 16; Lemond, 19 Va. App. at 694, 454 S.E.2d 

at 35; Kehl v. Commonwealth, 15 Va. App. 602, 606, 426 S.E.2d 

127, 129-30 (1993). 

 In the present case, appellant was convicted upon evidence 

that his BAC exceeded .08 percent. Although the breath 

certificate was not admitted into evidence, Officer Rodriquez 

testified that the results of the breath test showed appellant's 

BAC was .10 percent. Appellant objected to Rodriquez's testimony 

on the grounds that the certificate was facially defective and 

that the test was conducted too late. The court overruled 

appellant's objections, and appellant does not challenge these 

rulings on appeal. Accordingly, we consider the testimony of 

Officer Rodriquez properly admitted under the law of this case. 

 We assume, without deciding, that appellant's proffer of the 

Thorntons' expected testimony was sufficient to provide a "basis 

for adjudication" of the issue before us. See Whittaker v. 

Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81 (1977). It is 

clear that appellant expected the Thorntons to testify concerning 

the events surrounding the stop, appellant's appearance and 
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demeanor at the time of the stop, and appellant's performance on 

the field sobriety tests. Contrary to appellant's contention, 

however, it is equally clear that such testimony would in no way 

rebut the presumption that appellant's BAC, as determined by the 

breath test, exceeded .08 percent at the time he was driving. 

See, e.g., Davis, 8 Va. App. at 300, 381 S.E.2d at 16 (whether 

accused under the influence of alcohol not at issue in 

prosecution under Code § 18.2-266(i)). 

 In light of the admission of the test results through the 

testimony of Officer Rodriquez, the proffered testimony was not 

material to the case at bar. Thus, we find no error in the trial 

court's denial of appellant's motion for a continuance. 

 Accordingly, we affirm appellant's conviction. 

Affirmed.