Joseph Reed Brown v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Lemons and
Senior Judge Duff
Argued at Alexandria, Virginia
JOSEPH REED BROWN
MEMORANDUM OPINION * BY
v. Record No. 0787-98-4 JUDGE CHARLES H. DUFF
JULY 6, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
John E. Kloch, Judge
Christopher Leibig, Assistant Public
Defender, for appellant.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Joseph Reed Brown was convicted of driving under the
influence of intoxicants in violation of Code § 18.2-266.
Appellant argues that the trial court erroneously admitted a
police officer's testimony in lieu of a certificate of analysis
and that the reliability of the breath testing equipment was not
proved. We agree that the reliability of the equipment was not
proved, and thus reverse the conviction. 1
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
As we reverse on the second issue presented, we do not
address the first issue regarding the testimony of the results
of the breath test.
BACKGROUND
Appellant was stopped at a DWI checkpoint. After
conducting field sobriety tests, Officer Joseph Pohlmeier
arrested appellant. Shortly thereafter, appellant took a breath
analysis test administered by Officer Christopher Wemple, a
licensed operator.
At trial, the Commonwealth failed to offer the certificate
of analysis to prove appellant's blood level of alcohol. Wemple
testified that he remembered administering the breath test to
appellant and that he administered the test in accordance with
normal procedures. Wemple also testified that he did not know
when the breath testing equipment was last calibrated for
accuracy, but that based on his experience, the equipment will
not operate unless it is properly calibrated. Wemple further
testified that appellant's blood alcohol level was ".12."
EVIDENCE OF EQUIPMENT RELIABILITY
Appellant argues that Wemple's testimony was insufficient
to establish the reliability of the breath testing equipment.
Code § 18.2-268.9 provides that the individual conducting
the breath test "shall issue a certificate which will indicate
that . . . the equipment on which the breath test was conducted
has been tested within the past six months and has been found to
be accurate . . . ." This provision was included in the statute
to ensure the proper functioning of the equipment.
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Wemple, a certified breath test operator, testified that he
administered the test according to proper procedure and issued a
certificate as required by the statute. The certificate was not
available for trial, and Wemple testified that he did not know
when the breath testing equipment was last calibrated for
accuracy. Code § 18.2-268.9 requires proof that the breath
testing equipment had been tested within the past six months and
found to be accurate. Without such proof of the calibration
date of the breath testing equipment, the requirements of Code
§ 18.2-268.9 were not met, and the trial court erred in
admitting the results of appellant's breath test.
Nor do we find such error merely procedural which might be
cured by Code § 18.2-268.11. The lack of the statutorily
mandated evidence of calibration affects the integrity of the
result and is a matter of substance. See Brooks v. City of
Newport News, 224 Va. 311, 315, 295 S.E.2d 801, 803 (1982);
Williams v. Commonwealth, 10 Va. App. 636, 639, 394 S.E.2d 728,
729 (1990). Accordingly, appellant's conviction for driving
under the influence of intoxicants is reversed and the charge is
dismissed.
Reversed and dismissed.
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