COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Coleman and Elder 

Argued at Salem, Virginia 

RODNEY DALE JONES 

 OPINION BY 

v. Record No. 2836-97-3 JUDGE SAM W. COLEMAN III 

 JANUARY 12, 1999 

TOWN OF MARION 

FROM THE CIRCUIT COURT OF SMYTH COUNTY 

Charles H. Smith, Jr., Judge 

 Sage B. Johnson for appellant. 

 Charles F. Lincoln for appellee. 

 Rodney Dale Jones appeals his conviction of driving under 

the influence in violation of Code § 18.2-266. Jones contends 

the trial court erred in denying his motion to strike because (1) 

the arresting officer failed to offer him a preliminary breath 

analysis pursuant to Code § 18.2-267, and (2) the arresting 

officer failed to bring him before a magistrate to determine 

probable cause as required by Code § 19.2-82. Finding no 

reversible error, we affirm. 

BACKGROUND

 Officer Henderson observed Jones's van straddle the center 

line and, despite oncoming traffic, turn from a left turn lane 

without a green arrow. Henderson pulled Jones over, after which 

Jones opened the door and began to fall out of his van. 

Henderson caught Jones to stop his fall. Jones smelled of 

alcohol and was not able to stand. Henderson testified that 

Jones appeared physically unable to perform any field sobriety 
- 2 - 

tests, including a preliminary breath analysis; accordingly, 

Henderson did not offer him the preliminary test. Henderson 

arrested Jones at the scene and transported him to jail where 

another officer administered a breathalyzer test that registered 

a 0.27 percent blood alcohol level. Thereafter, Henderson, 

without Jones present, obtained a warrant from a magistrate and 

later served the warrant upon Jones. After the breathalyzer 

test, Jones appeared briefly in the presence of the magistrate 

while the administering officer submitted the results of the 

breathalyzer test to the magistrate. Apparently, the arresting 

officer, Jones, and the magistrate were at no time simultaneously 

in each other's presence. 

ANALYSIS

 On appeal, we view the evidence in the light most favorable 

to the prevailing party, granting to it all reasonable inferences 

fairly deducible therefrom. See Higginbotham v. Commonwealth, 

216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). We defer to the 

trial court's findings of fact unless plainly wrong; however, we 

review de novo the trial court's legal conclusions and the 

application of legal principles to those facts. See Timbers v. 

Commonwealth, 28 Va. App. 187, 193-94, 503 S.E.2d 233, 235-36 

(1998). 

Preliminary Breath Analysis

 Jones argues that because Henderson did not offer him a 

preliminary breath analysis as required by Code § 18.2-267, the 
- 3 - 

trial judge should have granted his motion to strike the 

evidence. "Any person who is suspected of a violation of [Code] 

§ 18.2-266 or [Code] § 18.2-266.1 shall be entitled, if such 

equipment is available, to have his breath analyzed to determine 

the probable alcoholic content of his blood." Code § 18.2-267. 

"[T]his Code section provides a mechanism to resolve a potential 

on-the-scene dispute between the police and the accused 

concerning the alcoholic content of the blood of the accused. It 

is, however, a purely voluntary mechanism and no penalties attach 

to a refusal to submit to these tests." Farmer v. Commonwealth, 

12 Va. App. 337, 343, 404 S.E.2d 371, 374 (1991) (Koontz, C.J., 

dissenting). Henderson did not offer the preliminary test to 

Jones. 

 The dispositive question is whether failure to offer the 

preliminary breath test is grounds for reversal. In Wohlford v. 

Commonwealth, 3 Va. App. 467, 351 S.E.2d 47 (1986), we considered 

whether a failure to inform the accused of his right to refuse 

the preliminary breath test prior to administering the test 

invalidated the arrest. In Wohlford, the officer informed the 

suspect of the right to a preliminary breath test but did not 

inform the accused he could refuse the test. We noted in 

Wohlford that even without the results of a preliminary breath 

analysis the arresting officer had probable cause to arrest the 

defendant. Therefore, despite the officer's not informing the 

accused that he could refuse the test, the trial court properly 
- 4 - 

refused to suppress the fruits of that arrest. See id. at 

471-72, 351 S.E.2d at 49-50. 

 Jones correctly contends that the facts and issue in 

Wohlford are clearly distinguishable from the facts and issue in 

the present case. In Wohlford, the arresting officer 

administered the preliminary test, albeit without informing the 

accused of his right to refuse; Henderson neither informed Jones 

of his right to have the test nor administered the test. 

Wohlford states, although perhaps in dictum, that even 

disregarding the preliminary breath test results, the officer had 

probable cause to arrest. The function of the preliminary breath 

test under Code § 18.2-267 is to provide an independent means to 

determine and resolve questions concerning probable cause, but it 

does not supplant other methods for a police officer to determine 

probable cause. Here, the record establishes that Henderson had 

sufficient probable cause to arrest Jones without the preliminary 

test. Jones's erratic driving, the odor of alcohol upon him, and 

the fact that he fell from the van and was not able to stand 

created sufficient probable cause for the arrest for driving 

while intoxicated. 

 Jones also argues that he was constitutionally prejudiced by 

not having the preliminary breath test administered because he 

was denied evidence that may have tended to corroborate his 

testimony contesting the breathalyzer test results. The argument 

fails because the statute expressly provides that the results of 
- 5 - 

the preliminary breath test are not admissible "in any 

prosecution under [Code] § 18.2-266 or [Code] § 18.2-266.1," but 

are intended instead to resolve disputes at the scene regarding 

probable cause to arrest. Code § 18.2-267(E). Therefore, 

Henderson's failure to comply with Code § 18.2-267 does not 

invalidate Jones's arrest. 

 Post-Arrest Probable Cause Determination

 Jones contends that Henderson's failure to bring him before 

a magistrate and to follow proper procedure for having a judicial 

officer determine probable cause after a warrantless arrest 

constitutes reversible error. Code § 19.2-82 dictates that a 

"[p]erson arrested without a warrant shall be brought forthwith 

before a magistrate" to determine whether probable cause exists. 

 The statute contemplates either a personal appearance or an 

electronic appearance "in order that the accused and the 

arresting officer may simultaneously see and speak to such 

magistrate." Code § 19.2-82.1

 Jones argues that Henderson's 

failure to "present" Jones to the magistrate face-to-face, either 

physically or through electronic means, violated the statute and 

deprived him of the statutorily required probable cause 

determination. 

 

 1Although the statute requires that the arresting officer 

and the accused appear together before the magistrate, the 

parties' emphasis on the word "simultaneously" is misplaced. As 

used in this section, and Code § 19.2-3.1, "simultaneously" 

modifies "see and speak." Nevertheless, the statute provides 

that the accused "shall be brought forthwith before a magistrate 

. . . who shall proceed to examine the officer making the arrest 

under oath." 
- 6 - 

 The statute directs that when a police officer arrests 

without a warrant, the officer shall take the accused before a 

magistrate "who shall proceed to examine the officer making the 

arrest under oath." However, procedural violations of Code 

§ 19.2-82 require the exclusion or suppression of evidence only 

when the violation has infringed upon an accused's constitutional 

rights. For example, in cases where the arresting officers have 

delayed in bringing an accused before a magistrate, unless the 

delay has deprived the accused of exculpatory evidence, the 

subsequent conviction has been affirmed. See, e.g., Frye v. 

Commonwealth, 231 Va. 370, 376, 345 S.E.2d 267, 273 (1986) 

(stating that violation of the code provision "reaches a 

constitutional dimension only if it results in the defendant's 

loss of exculpatory evidence"); Horne v. Commonwealth, 230 Va. 

512, 518-19, 339 S.E.2d 186, 191 (1986) ("[o]nly in a situation 

where the delay in taking a suspect before a magistrate resulted 

in the loss of exculpatory evidence have we concluded that the 

defendant's due process rights were violated and reversed his 

conviction"); Holt v. City of Richmond, 204 Va. 364, 368, 131 

S.E.2d 394, 397 (1963) (stating that failure to follow the 

statute's procedure will not necessarily result in invalidating 

the conviction); McHone v. Commonwealth, 190 Va. 435, 444, 57 

S.E.2d 109, 114 (1950) (stating that an officer's procedural 

error should not deprive the Commonwealth of enforcing penal laws 

unless the error invades the defendant's constitutional rights); 
- 7 - 

Winston v. Commonwealth, 188 Va. 386, 396, 49 S.E.2d 611, 616 

(1948) (reversing because, as a result of his illegal detention, 

the defendant was forever deprived of material and possibly 

exculpatory evidence); see also Thompson v. Commonwealth, 10 Va. 

App. 117, 122, 390 S.E.2d 198, 202 (1990) (finding that an arrest 

in violation of a state statute does not require that a 

confession obtained thereafter be suppressed). 

 Undeniably, Jones's probable cause determination did not 

adhere to the procedure set forth in Code § 19.2-82 because 

Officer Henderson did not take Jones before a magistrate "who 

. . . proceed[ed] to examine . . . [Henderson] under oath." The 

two did not appear together before the magistrate. While this 

statutory violation differs from the delay or procedural 

irregularities in the foregoing cases, the procedural violation 

here similarly does not constitute reversible error because it 

did not deny Jones due process of law. The procedural violation 

alone of Code § 19.2-82 is not reversible error unless it results 

in infringement of a constitutional right. 

 The Fourth Amendment requires that after a warrantless 

arrest and before a suspect is subject to extended pretrial 

custody, a judicial officer must make an informal determination 

of probable cause. See Gerstein v. Pugh, 420 U.S. 103, 113-14 

(1975). However, this constitutional requirement does not 

mandate a personal appearance of the accused at the probable 

cause determination and certainly does not require that the 
- 8 - 

accused and arresting officer appear together before the 

magistrate. See King v. Jones, 824 F.2d 324, 326-27 (4th Cir. 

1987). 

 The post-arrest Gerstein v. Pugh hearing is 

required to fulfill the same function for 

suspects arrested without warrants as the 

pre-arrest probable cause hearing fulfills 

for suspects arrested with warrants. One who 

has had an arrest warrant issued before his 

arrest has had no opportunity to appear 

physically before the issuing magistrate 

during the probable cause determination. 

There is likewise no reason to require such 

an appearance at the post-arrest probable 

cause determination. 

Id.

 Despite no constitutional requirement that an accused appear 

personally at the probable cause hearing or that the arresting 

officer and accused appear together before a magistrate, the 

General Assembly adopted those requirements when it enacted Code 

§ 19.2-82. The salutary purpose of this provision is to 

facilitate the magistrate's probable cause determination by 

having the accused, who is required to be brought "forthwith" 

before a magistrate, and the arresting officer appear at the same 

time in order to avoid unnecessary delay and any confusion 

arising from a magistrate's piecemeal inquiry. Contrary to 

Jones's claim and the Town of Marion's concurrence, the provision 

of Code § 19.2-82 that arresting officer and accused appear 

together does not require that the magistrate's probable cause 

determination be an adversarial hearing. 

 Jones makes no claim that Henderson's failure to bring him 
- 9 - 

before the magistrate deprived him of exculpatory evidence. He 

claims, however, that compliance with the statutory requirement 

of bringing him before the magistrate was a critical part of the 

evidentiary probable cause determination and that the 

magistrate's opportunity to observe him was "even more necessary" 

because "the alleged amount of alcohol and the accused's demeanor 

[were] important aspects of the case." 

 The record shows that Jones was in the presence of the 

magistrate briefly when the breathalyzer operator gave the 

magistrate the breathalyzer test results. However, we need not 

determine whether the accused's brief presence before the 

magistrate was sufficient to comply with the statutory 

requirement because Jones has failed to show that the omission 

prevented him from obtaining evidence or was otherwise 

prejudicial to him. The record establishes that an officer 

administered a breathalyzer test shortly after Jones arrived at 

the police station and made the result available to the 

magistrate immediately thereafter. Jones has failed to show that 

the procedural irregularity deprived him of exculpatory evidence 

or was otherwise prejudicial to him. 

 Accordingly, the trial court's conviction is affirmed. 

 Affirmed.