Joseph Reed Brown v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: July 6, 1999
• Docket: 0787984
• Status: Unpublished

Opinion

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.

- 2 - 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

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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