                       COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Humphreys
Argued at Alexandria, Virginia


BRADFORD W. CEPHAS, JR.
                                           MEMORANDUM OPINION * BY
v.   Record No. 3359-01-4         CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                MARCH 4, 2003
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
                 Frank A. Hoss, Jr., Judge Designate

            Joseph R. Winston, Special Appellate Counsel
            (Public Defender Commission, on briefs), for
            appellant.

            Amy L. Marshall, Assistant Attorney General
            (Jerry W. Kilgore, Attorney General, on
            brief), for appellee.


     In a bench trial, the trial court convicted Bradford W.

Cephas, Jr. (appellant) of driving under the influence (DUI)

(third offense) and driving after having been declared an habitual

offender (second offense). 1   Appellant contends that the trial

court erred in admitting the breath test certificate of analysis.2

For the reasons that follow, we affirm.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
         Appellant challenges only the DUI conviction on appeal.
     2
       Appellant also contends that the evidence, without the
improperly admitted certificate of analysis, was insufficient to
support his DUI conviction. Because we hold that the certificate
of analysis was properly admitted, we do not address this issue.
                                   I.

     On the evening of February 10, 2001 Sergeant George

Southard (Southard) of the Warrenton Police Department arrested

appellant for DUI.     Southard took appellant to the magistrate's

office, where appellant elected to take a breath test that

reflected a blood alcohol content of 0.15.

     A certificate of analysis (certificate) for the breath test

was filed in the general district court prior to appellant's

preliminary hearing. 3     The general district court certified

appellant to the circuit court grand jury on April 12, 2001 and

ordered that all the original papers in the case be forwarded to

the Clerk of the Circuit Court.      This order was stamped "filed"

in the circuit court on April 13, 2001.      None of the other

papers forwarded to the circuit court were stamped "filed" in

the circuit court. 4     Appellant was tried in a bench trial on

August 16, 2001.   At trial, appellant objected to admission of

the certificate of analysis on the basis that the Commonwealth

failed to file the certificate in the circuit court seven days

prior to trial as required by Code § 19.2-187.




     3
       The record does not reveal whether appellant requested and
was mailed a copy of the certificate and that issue is not
before us.
     4
       The record reflects that pages 1-17 arrived as a group
from the general district court. The next page, page 18, begins
with documents that originated in the trial court.

                                  - 2 -
     The trial court, after reviewing the court file, overruled

appellant's objection, finding that the certificate was "filed"

along with all of the papers from the district court with the

Clerk of the Circuit Court on April 13, 2001.   Appellant was

convicted of DUI (third offense) and driving after having been

declared an habitual offender (second offense).

                                II.

     Appellant contends that the trial court erred in admitting

the certificate of analysis into evidence because the

Commonwealth did not prove the certificate was filed seven days

prior to trial with the Clerk of the Circuit Court as required

by Code § 19.2-187.   The record shows otherwise.

     "Generally, a court has discretion to determine whether

evidence is admissible."   Waller v. Commonwealth, 27 Va. App.

71, 74, 497 S.E.2d 508, 509 (1998).    Nevertheless, "[a]

certificate of analysis is not admissible if the Commonwealth

fails strictly to comply with the provisions of Code

§ 19.2-187."   Woodward v. Commonwealth, 16 Va. App. 672, 674,

432 S.E.2d 510, 512 (1993).   Code § 19.2-187 provides:

          In any hearing or trial of any criminal
          offense . . . a certificate of analysis of a
          person performing an analysis or
          examination, performed in any laboratory
          operated by the Division of Consolidated
          Laboratory Services or the Division of
          Forensic Science or authorized by such
          Division to conduct such analysis or
          examination, . . . when such certificate is
          duly attested by such person, shall be
          admissible in evidence as evidence of the

                               - 3 -
          facts therein stated and the results of the
          analysis or examination referred to therein,
          provided (i) the certificate of analysis is
          filed with the clerk of the court hearing
          the case at least seven days prior to the
          hearing or trial and (ii) a copy of such
          certificate is mailed or delivered by the
          clerk or attorney for the Commonwealth to
          counsel of record for the accused at least
          seven days prior to the hearing or trial
          upon request made by such counsel to the
          clerk with notice of the request to the
          attorney for the Commonwealth.

"The purpose of the [statute] is plain.   It is to ensure that

the certificate to be used in evidence is lodged timely in a

secure and appropriate place, accessible to the accused, and

available to him upon request."   Stokes v. Commonwealth, 11 Va.

App. 550, 552, 399 S.E.2d 453, 454 (1991).   "This statute 'sets

forth a specific statement of admissibility of certificates' and

once its 'provisos are satisfied, the statement . . . is

complete, and a certificate thus qualified is properly received

into evidence.'"   Harshaw v. Commonwealth, 16 Va. App. 69, 71,

427 S.E.2d 733, 735 (1993) (quoting Stokes, 11 Va. App. at 552,

399 S.E.2d at 454).

     Appellant relies upon Allen v. Commonwealth, 3 Va. App.

657, 353 S.E.2d 162 (1987), to support his contention that the

certificate was erroneously admitted into evidence.    In Allen,

we held that

          [t]he statute does not authorize filing in
          the general district court as a substitute
          for the proviso that the certificates be
          filed in the circuit court at least seven
          days prior to the hearing in the circuit

                               - 4 -
               court; rather it specifically requires the
               certificate to be filed with the clerk of
               the court hearing the case at least seven
               days prior to the hearing or trial.

Id. at 664, 353 S.E.2d at 166 (emphasis in original).       The

instant case, however, is factually distinguishable from Allen. 5

        In Allen, we noted that "[n]othing in the record

indicate[d] when the certificates were filed in the circuit

court clerk's office."       Id.   There was no date stamp on the

documents.      This omission prevented the certificates from being

used against Allen because there was no way to determine

compliance with the statute.       In the instant case, the trial

court reviewed the court file and found "the file shows that the

papers from the general district court were filed on 13 April

2001.       That's a stamp from Gail H. Barb, Clerk of this Court."

(Emphasis added).      The papers, including the certificate, were

filed as a group.      While appellant correctly points out that the

certificate itself is not stamped "filed," we note that the

order of the general district court transferring the case to the

trial court, ordered that "The original of this order is to be

forwarded to the Clerk of the Circuit Court with all papers in



        5
       We note also that the rule is that "in the absence of the
preparer of the certificate as a witness at trial, the failure
of the Commonwealth fully to comply with the filing provisions
of § 19.2-187 renders the certificate inadmissible." Gray v.
Commonwealth, 220 Va. 943, 945, 265 S.E.2d 705, 706 (1980)
(emphasis added). This rule is not implicated here, however,
because Southard prepared the certificate and testified at
trial.

                                    - 5 -
this case," was stamped "filed" on April 13, 2001.     (Emphasis

added).

     "In the absence of clear evidence to the contrary, courts

may presume that public officers have properly discharged their

official duties."   Robertson v. Commonwealth, 12 Va. App. 854,

856-57, 406 S.E.2d 417, 418 (1991).    Thus, here there is a

presumption that the clerk of the general district court

complied with that court's order to transfer all the papers in

the case to the trial court.   Furthermore, when the order

arrived in the circuit court clerk's office and was stamped as

"filed" it was accompanied by the other papers in the case,

including the certificate, all of which were "filed" when the

order was filed with the Clerk of the Circuit Court.    "Code

§ 19.2-187 does not prescribe the manner in which a clerk's

office must mark such certificates."    Carter v. Commonwealth, 12

Va. App. 156, 158, 403 S.E.2d 360, 361 (1991).   Accordingly, if

there is an objective basis in the record from which the fact

finder can determine if and when the certificate was filed in

the court, Code § 19.2-187 is satisfied.   Credible evidence

supports the trial court's finding.

                                                           Affirmed.




                               - 6 -
