COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Fitzpatrick 

MARK ALLEN VAN LEAR 

v. Record No. 1924-94-3 MEMORANDUM OPINION*

 BY JUDGE SAM W. COLEMAN III 

COMMONWEALTH OF VIRGINIA FEBRUARY 20, 1996 

FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY 

Duncan M. Byrd, Jr., Judge 

 Dabney L. Pasco (Christopher Wm. Schinstock; 

 St. Clair & Associates, on briefs), for appellant. 

 Robert B. Beasley, Jr., Assistant Attorney General 

 (James S. Gilmore, III, Attorney General, on brief), 

 for appellee. 

 Mark Allen Van Lear appeals his conviction for operating a 

motor vehicle while under the influence of alcohol. Van Lear 

contends that the trial court erred by (1) admitting into 

evidence the certificate of breath alcohol analysis, and 

(2) applying the statutory presumption of intoxication to the 

breath test results. We hold that the trial court did not err by 

admitting the certificate of analysis into evidence, but did err 

by considering the results as stated in the certificate 

sufficient to apply the Code § 18.2-269(A)(3) statutory 

presumption of intoxication.1

 Accordingly, we reverse the 

conviction and remand the case to the trial court. 

 

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

designated for publication. 

 1Gardner v. Commonwealth, 195 Va. 945, 954, 81 S.E.2d 614, 

619 (1954), holds that "under the influence of alcohol" is 

equivalent to "intoxication" and adopts the definition of 

intoxication from Code § 4-12(14). 
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 The Certificate of Breath Alcohol Analysis, introduced by 

the Commonwealth and admitted by the trial judge, stated that the 

defendant's breath alcohol content was ".10% grams per 210 liters 

of breath." The defendant contends that Code § 18.2-269(A)(3) 

requires that the method for reporting the results of the 

analysis of an accused's breath alcohol content be the number of 

grams of alcohol per 210 liters of the accused's breath, which 

necessarily requires that the results be expressed in whole 

numbers, rather than as a percentage.2

 Furthermore, he argues, 

it makes no sense to express breath test results as a percentage 

of "grams per 210 liters of breath" and because the certificate 

is inconsistent, on its face, with the breath test operator's 

attestation, "that the above is an accurate record of the test 

conducted," the trial court should not have admitted the 

certificate of analysis into evidence. 

 The Commonwealth acknowledges that an error exists on the 

certificate of analysis, but argues that it is apparent that the 

"%" sign was inadvertently inserted in the certificate. 

Therefore, the Commonwealth contends that the trial court 

properly concluded that the certificate of analysis showed the 

 2 Code § 18.2-269(3)(A) provides: 

 If there was at that time 0.08 percent or more by 

weight by volume of alcohol in the accused's blood or 

0.08 grams or more per 210 liters of the accused's 

breath, it shall be presumed that the accused was under 

the influence of alcohol intoxicants at the time of the 

alleged offense. 
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test results to be .10 grams of alcohol per 210 liters of the 

defendant's breath. 

 "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)). Here, there is no indication that the breath 

test was performed improperly or that the test operator was not 

qualified. See Brooks v. City of Newport News, 224 Va. 311, 315, 

295 S.E.2d 801, 803 (1982). Code § 18.2-268.9 provides, among 

other things, the "certificate, when attested by the individual 

conducting the breath test, shall be admissible in any court in 

any criminal or civil proceeding as evidence of the facts therein 

stated and of the results of such analysis." Moreover, if, as 

the Commonwealth contends, the "%" sign was inserted in error, 

that error is a procedural matter, rather than a substantive one 

affecting the test results, and does not defeat the admissibility 

of the certificate. See Code § 18.2-268.11; cf. Brooks, 224 Va. 

at 315, 295 S.E.2d at 803 (holding that the qualification of the 

test operator is a substantive matter). Thus, although the 

measurement as expressed in the certificate of analysis is stated 

in terms other than as provided by the statute and the evidence 

fails to explain the significance of ".10% grams,"3

 the trial 

 

 3 Although .10% mathematically converts to the whole number, 

.001, both the appellant and the Commonwealth acknowledge that 

expressing the measurement of alcohol content of breath in terms 
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court did not err by admitting the certificate into evidence. 

of "percentage" of grams of alcohol per 210 liters of breath, 

rather than the number of grams of alcohol per 210 liters of 

breath, makes no sense. The Commonwealth argues that it is 

patent that the examiner included a "%" sign because the statute 

formerly provided for measuring blood alcohol content only in 

terms of percentage of alcohol level in the accused's blood. 

We hold, therefore, that the trial court did not abuse its 

discretion by admitting the certificate of analysis into 

evidence. The problem remains, however, what is the evidentiary 

value of the certificate of analysis showing unexplained results 

of ".10%" grams per 210 liters." 

 We turn to whether the trial court could consider the 

results as expressed in the certificate sufficient to apply 

the presumption of intoxication in accordance with Code 

§ 18.2-269(A)(3). The Commonwealth did not offer evidence to 

explain the error in ".10%." Without evidence explaining the 

errors, the trial judge could not assume that "%" was simply 

inserted by error and that the correct measurement for alcohol 

content was .10 grams per 210 liters of the accused's breath. 

Accordingly, by failing to determine that the certificate 

reflected the correct measurement of the defendant's breath 

alcohol content, the trial court erred in applying the statutory 

presumption of intoxication under Code § 18.2-269(A)(3) to the 

test results. Because the trial court erroneously based its 

finding of intoxication upon the statutory presumption, we do not 

decide whether the other evidence was sufficient to prove 

intoxication. See Williams v. Commonwealth, 10 Va. App. 636, 

639, 394 S.E.2d 728, 729 (1990); see also Overbee v. 
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Commonwealth, 227 Va. 238, 243-45, 315 S.E.2d 242, 244-45 (1984); 

Brooks, 224 Va. at 315-16, 295 S.E.2d at 804. Therefore, we 

reverse the conviction and remand the case to the trial court for 

such further action as the Commonwealth may be advised. 

 

 Reversed and remanded.