COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick,* Judge Elder and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

ROBERT EUGENE HUGHES, III 

 MEMORANDUM OPINION** BY 

v. Record No. 2802-96-4 JUDGE LARRY G. ELDER 

 NOVEMBER 25, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jack B. Stevens, Judge 

 Mark J. Yeager for appellant. 

 Ruth Ann Morken, Assistant Attorney General 

(James S. Gilmore, III, Attorney General; 

Margaret Ann B. Walker, Assistant Attorney 

General, on brief), for appellee. 

 Robert E. Hughes (appellant) appeals his conviction of 

driving under the influence of alcohol in violation of Code 

§ 18.2-266. He contends that the trial court erred when it 

admitted into evidence a certificate of blood alcohol analysis 

stating the result of a breath test he took shortly after his 

arrest. For the reasons that follow, we reverse and remand. 

 I. 

 FACTS 

 On May 16, 1996, at approximately 8:30 a.m., appellant was 

arrested by Trooper Loftis for driving under the influence of 

 

 *On November 19, 1997, Judge Fitzpatrick succeeded Judge 

Moon as chief judge. 

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

designated for publication. 
 -2- 

alcohol. The trooper transported appellant to headquarters where 

Trooper Mungin administered a breath test to appellant. The test 

indicated that appellant's blood alcohol content was in excess of 

the legal limit allowed for operating a motor vehicle. The 

result of this test was recorded on a certificate of blood 

alcohol analysis (certificate). 

 On August 13, appellant filed a precipe with the trial court 

requesting the clerk to send him a copy of the certificate. The 

clerk did not mail or deliver a copy of the certificate prior to 

appellant's trial on October 3. 

 At trial, appellant made a motion in limine to exclude the 

certificate because the clerk did not satisfy the "mailing 

requirement" of Code § 19.2-187. The trial court granted the 

motion. The Commonwealth subsequently moved for a nolle

prosequi, which the trial court denied. The trial court then 

granted a recess of approximately two hours, during which the 

Commonwealth located Trooper Mungin. 

 When appellant's trial resumed, the Commonwealth called 

Trooper Mungin to testify. The written statement of facts 

summarizing the trooper's testimony indicates that he identified 

the certificate, but did not otherwise testify about its contents 

or the breath test he administered to appellant. The 

Commonwealth then moved the certificate into evidence. The trial 

court overruled appellant's objection to the certificate and 

admitted it into evidence. The trial court subsequently 
 -3- 

convicted appellant of driving under the influence of alcohol. 
 -4- 

 II. 

 ADMISSIBILITY OF THE CERTIFICATE OF BLOOD ALCOHOL ANALYSIS 

 Appellant contends that the trial court erred when it 

admitted the certificate because the Commonwealth failed to 

establish compliance with all of the safeguards of Code 

§ 19.2-187 and the testimony of Trooper Mungin did not render the 

certificate admissible. We agree. 

 It is well established that hearsay evidence is considered 

incompetent and is generally inadmissible unless it falls within 

an exception to this exclusionary rule. See Neal v. 

Commonwealth, 15 Va. App. 416, 420-21, 421 S.E.2d 521, 524 

(1992). Hearsay evidence is defined as: 

 testimony in court, or written evidence, of a 

statement made out of court, the statement 

being offered as an assertion to show the 

truth of matters asserted therein, and thus 

resting for its value upon the credibility of 

the out-of-court asserter. 

Stevenson v. Commonwealth, 218 Va. 462, 465, 237 S.E.2d 779, 781 

(1977) (citation omitted) (emphasis added). The hearsay rule 

applies to out-of-court statements contained in written reports 

offered to prove the results of tests or analysis conducted out 

of court. See Myrick v. Commonwealth, 13 Va. App. 333, 336-37, 

412 S.E.2d 176, 178 (1991)); see also Bradshaw v. Commonwealth, 

16 Va. App. 374, 380, 429 S.E.2d 881, 885 (1993) (citing William

v. Morris, 200 Va. 413, 417, 105 S.E.2d 829, 832 (1958)). 

 The General Assembly has created an exception to the hearsay 

rule for the contents of written certificates of analysis. See
 -5- 

Code § 19.2-187; Gray v. Commonwealth, 220 Va. 943, 945, 265 

S.E.2d 705, 706 (1980); Allen v. Commonwealth, 3 Va. App. 657, 

662-63, 353 S.E.2d 162, 165 (1987). However, as a foundation for 

the admission of hearsay statements contained in certificates of 

analysis, the Commonwealth must prove that it strictly complied 

with the specific safeguards set forth in Code § 19.2-187, 

including the "attestation" requirement, the "filing" 

requirement, and the "mailing" requirement.1 See Myrick, 13 Va. 

App. at 337, 412 S.E.2d at 178; Neal, 15 Va. App. at 420, 425 

S.E.2d at 524 (stating that "[t]he party seeking to rely on an 

exception to the hearsay rule has the burden of establishing 

admissibility"). If the Commonwealth fails to establish the 

foundation required by Code § 19.2-187, then any hearsay 

 

 1Code § 19.2-187 states in relevant part: 

 In any hearing or trial of any criminal 

offense . . . a certificate of analysis of a 

person performing an analysis or examination, 

performed in [one of the laboratories 

mentioned in the statute] when such 

certificate is duly attested by such person, 

shall be admissible in evidence as evidence 

of the facts therein stated and the results 

of the analysis or examination referred to 

therein, provided (i) the certificate of 

analysis is filed with the clerk of the court 

hearing the case at least seven days prior to 

the hearing or trial and (ii) a copy of such 

certificate is mailed or delivered by the 

clerk or attorney for the Commonwealth to 

counsel of record for the accused at least 

seven days prior to the hearing or trial upon 

request of such counsel. 

(Emphasis added). 
 -6- 

contained in a certificate of analysis is inadmissible to prove 

the truth of what it asserts. 

 We hold that the trial court erred when it admitted the 

certificate to prove the result of the breath test administered 

to appellant shortly after his arrest. The Commonwealth concedes 

that the clerk failed to comply with appellant's request for a 

copy of the certificate prior to his trial. Because the mailing 

requirement was not satisfied, Trooper Mungin's hearsay 

statements contained in the certificate were not admissible "as 

evidence of the facts . . . and the results of the analysis . . . 

referred to therein." Code § 19.2-187; see also Copeland v. 

Commonwealth, 19 Va. App. 515, 517, 452 S.E.2d 876, 877 (1995); 

Mullins v. Commonwealth, 12 Va. App. 372, 374-75, 404 S.E.2d 237, 

239 (1991). 

 The Commonwealth contends that Trooper Mungin's testimony 

justified admitting the certificate. It cites a passage in Gray

in which the Supreme Court stated that 

 in the absence of the preparer of the 

certificate as a witness at trial, the 

failure of the Commonwealth fully to comply 

with the . . . provisions of [Code] 

§ 19.2-187 renders the certificate 

inadmissible. 

Gray, 220 Va. at 945, 265 S.E.2d at 706. It argues that this 

passage indicates that the in-court appearance of the preparer of 

a certificate of analysis to "certify" the document is sufficient 

to render its out-of-court statements admissible for their truth. 

 We disagree. 
 -7- 

 The Supreme Court's dicta in Gray must be read together with 

its subsequent acknowledgement in that case that Code § 19.2-187 

creates an exception to the hearsay rule. See id. (stating that 

Code § 19.2-187 "undertakes to make admissible evidence which 

otherwise might be subject to a valid hearsay objection"). It is 

axiomatic that, in order for a written document to be admissible 

to prove the truth of its contents, the document must be properly 

authenticated and free of inadmissible hearsay. 

 [I]t is often mistakenly supposed that 

authentication of a document alone will 

establish its admissibility. It will not. 

The fact that a document is genuine does not 

mean that it is admissible. The genuine 

document must still meet the requirements of 

relevancy, etc., before it can be admitted, 

and the hearsay rule prohibits the admission 

of many a perfectly genuine document. 

Charles E. Friend, The Law of Evidence in Virginia § 15-1 (4th 

ed. 1993) (emphasis in original). The record established that, 

even after Trooper Mungin testified, the certificate still 

contained inadmissible hearsay. The summary of Trooper Mungin's 

testimony contained in the written statement of facts indicates 

that he merely "identified" the certificate. The summary does 

not indicate that the trooper testified in court regarding the 

administration and result of the breath test itself. Because 

Trooper Mungin did not testify about the facts surrounding the 

breath test, the certificate still contained written evidence of 

his out-of-court statement that appellant's blood alcohol content 

was over the legal limit at the time of the test. See Stevenson, 
 -8- 

218 Va. at 465, 237 S.E.2d at 781. Thus, assuming that Trooper 

Mungin authenticated the certificate, its contents were 

inadmissible because they were offered to prove the truth of the 

matter asserted and did not fall within an exception to the 

hearsay rule. 

 The admission of the hearsay statements in the certificate 

following the failure of the clerk to comply with the mailing 

requirement of Code § 19.2-187 is reversible error. See Woodward 

v. Commonwealth, 16 Va. App. 672, 674, 432 S.E.2d 510, 512 (1993) 

(stating that "[p]rejudice to the defendant from a failure to 

comply [with Code § 19.2-187] need not be shown"). However, 

because the reversal is for "mere trial error, and not for 

evidentiary insufficiency," we will remand the case for a new 

trial. See Gray, 220 Va. at 946, 265 S.E.2d at 706; Allen, 3 Va. 

App. at 664, 353 S.E.2d at 166. 

 For the foregoing reasons, we reverse the conviction of 

driving under the influence of alcohol in violation of Code 

§ 18.2-266 and remand for further proceedings consistent with 

this opinion. 

 Reversed and remanded.