                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Coleman and Elder
Argued at Salem, Virginia


DONALD JEFFREY JOSEPH

v.           Record No. 0607-95-3

COMMONWEALTH OF VIRGINIA                  MEMORANDUM OPINION *
                                       BY JUDGE JOSEPH E. BAKER
JEFFREY WAYNE HODGES                       DECEMBER 10, 1996

v.           Record No. 0608-95-3
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF ROANOKE COUNTY
                  Kenneth E. Trabue, Judge Designate

             Jonathan S. Kurtin (Lutkins, Shapiro &
             Kurtin, on brief), for appellants.

             Marla Graff Decker, Assistant Attorney
             General (James S. Gilmore, III, Attorney
             General, on brief), for appellee.



     Donald Jeffrey Joseph and Jeffrey Wayne Hodges (appellants)

were arrested and convicted in bench trials for driving while

intoxicated in violation of Code § 18.2-266.    The dispositive

issue in each case is whether the trial court erred by admitting

into evidence a certificate of breath alcohol analysis that

purportedly does not contain the date and time each breath sample

was taken.    Appellants contend that Code § 18.2-268 requires

that, in order to be admissible without the testimony from the

person authenticating the test, the certificate must state the

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
date and time the breath sample was taken from appellants.

Joseph's appeal presents the additional issue of whether the

trial court erroneously convicted him of feloniously operating a

motor vehicle after having been adjudicated an habitual offender.

Joseph contends that without the certificate as evidence, he was

wrongfully convicted of the felony.

                        I. The Certificate

     Code § 18.2-266 prohibits any person from driving a motor

vehicle in the Commonwealth "while such person has a blood

alcohol concentration of 0.08 percent or more by weight by volume

or 0.08 grams or more per 210 liters of breath as indicated by a

chemical test administered as provided in this article."    Code

§ 18.2-267 directs that any person suspected of driving in

violation of Code § 18.2-266 is entitled to have his breath

analyzed by any of several persons designated therein to

determine the probable alcohol content of his blood, and that any

person charged with violation of Code § 18.2-266 or § 18.2-266.1

or any similar local ordinance "shall then be subject to the

provisions of §§ 18.2-268.1 through 18.2-268.12, or of a similar

[local] ordinance."
     Any person who operates a motor vehicle upon a highway of

this Commonwealth shall be deemed to have consented to have his

breath tested.   Code § 18.2-268.2.    Code § 18.2-268.9 provides

that to be considered valid as evidence in a prosecution for

driving under the influence, a chemical analysis of a person's



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breath shall be performed only by the individuals described in

that section and by methods approved by the Department of

Criminal Justice Services, Division of Forensic Sciences.   In

relevant part, Code § 18.2-268.9 further provides:
            Any individual conducting a breath test
          under the provisions of § 18.2-268.2 shall
          issue a certificate which will indicate that
          the test was conducted in accordance with the
          Division's specifications, the equipment on
          which the breath test was conducted has been
          tested within the past six months and has
          been found to be accurate, the name of the
          accused, that prior to administration of the
          test the accused was advised of his right to
          observe the process and see the blood alcohol
          reading on the equipment used to perform the
          breath test, the date and time the sample was
          taken from the accused, the sample's alcohol
          content, and the name of the person who
          examined the sample. This 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. Any such
          certificate of analysis purporting to be
          signed by a person authorized by the Division
          shall be admissible in evidence without proof
          of seal or signature of the person whose name
          is signed to it. A copy of the certificate
          shall be promptly delivered to the accused.
            The officer making the arrest, or anyone
          with him at the time of the arrest, or anyone
          participating in the arrest of the accused,
          if otherwise qualified to conduct such test
          as provided by this section, may make the
          breath test or analyze the results.


     Code § 18.2-268.11 specifically directs that the steps set

forth in Code §§ 18.2-268.2 through 18.2-268.9 are procedural,

not substantive, and further provides:
            Failure to comply with any steps or
          portions thereof, or a variance in the
          results of the two blood tests shall not of



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          itself be grounds for finding the defendant
          not guilty, but shall go to the weight of the
          evidence and shall be considered with all the
          evidence in the case; however, the defendant
          shall have the right to introduce evidence on
          his own behalf to show noncompliance with the
          aforesaid procedures or any part thereof, and
          that as a result his rights were prejudiced.


     The determinative issue in appellants' cases is whether Code

§ 18.2-268.11 applies to the provisions of Code § 18.2-268.9.      We

hold that it does.

     Appellants' sole claim is that the certificates of analysis

are inadmissible as a matter of law because they did not show the

dates and times the samples were taken.   In all other respects,

they concede that the certificates complied with the code

provisions.   The record discloses that a warrant of arrest for

violation of Code § 18.2-266 was issued against Joseph on
July 31, 1994 at 1:45 a.m.   The certificate shows that the test

was "performed on July 31, 1994 at 2:33 a.m."    The warrant was

served on Joseph at 2:36 a.m.   The record also discloses that a

warrant of arrest for violation of Code § 18.2-266 was issued

against Hodges on October 1, 1994 at 3:49 a.m.   The certificate

shows that the test was performed on October 1, 1994 at 4:14 a.m.

The warrant was served on Hodges at 4:20 a.m.    At trial,

appellants submitted the Commonwealth's Division of Forensic

Sciences' Breath Alcohol Operator Training Manual for the trial

court's consideration.   That document requires that the breath

test procedure be substantially contemporaneous with the time the

sample was taken.    The record confirms compliance with that



                                - 4 -
requirement.

     In each case, notations on the warrants showing when the

breath tests were "performed" were sufficient to prove when the

samples were taken.   Accordingly, we hold that in each case the

record establishes substantial compliance with the Code

provisions and the trial court did not err when it admitted the

respective certificates into evidence.

                        II. Habitual Offender

     An habitual offender who drives a motor vehicle while the

revocation of the person's driving privilege remains in effect

and the person's driving, of itself, endangers the life, limb, or

property of another, shall be guilty of a felony.   Code

§ 46.2-357.    Joseph contends that the evidence was insufficient

to prove that his driving endangered the life, limb, or property

of another and, thus, he did not commit a felony offense.    We

disagree.

     Viewed in the light most favorable to the Commonwealth and

granting it all reasonable inferences deducible therefrom,
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975), the evidence reveals that on July 31, 1994, Officer

Reynolds (Reynolds) of the Roanoke County Police Department saw

Joseph drive his blue pick-up truck and attempt to enter the flow

of traffic from a parking lot.    Joseph pulled out in front of an

oncoming car and accelerated rapidly.    Joseph's actions forced

the driver of the oncoming car to slam on its brakes and skid off




                                 - 5 -
to the right.   Joseph then rapidly accelerated his truck and ran

it onto the right shoulder of the road.    Although the shoulder

was not marked by a dividing line, the truck went three-quarters

of its width off of the travel lane.     Reynolds activated his

emergency lights, but Joseph ignored them and proceeded forward.

 Reynolds activated his siren.    Joseph waved to Reynolds and

continued on, stopping his truck in a left-center turn lane about

one-half mile from where the pursuit began.    Throughout the

pursuit, Reynolds watched the vehicle weaving within its lane.

The breathalyzer test showed Joseph's blood alcohol content to
be 0.10.

     In Travis v. Commonwealth, 20 Va. App. 410, 457 S.E.2d 420

(1995), we held that evidence of the defendant weaving in his own

lane and into another was sufficient to find the endangerment

necessary to support a felony violation of Code § 46.2-357.       Id.

at 417, 457 S.E.2d at 423.   Here, Joseph cut off another vehicle,

causing its driver to slam on the brakes and resulting in the car

going into a skid.   Additionally, Joseph drove his truck off the

shoulder of the road and was weaving within his lane.    This

evidence supports the trial court's finding of endangerment.

     For the foregoing reasons, the judgments of the trial court

are affirmed.

                                                          Affirmed.




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