                     COURT OF APPEALS OF VIRGINIA


Present: Judges Koontz, Elder and Fitzpatrick
Argued at Salem, Virginia

JOSEPH SIMON COOK

v.       Record No. 0326-94-3             MEMORANDUM OPINION * BY
                                      JUDGE JOHANNA L. FITZPATRICK
TOWN OF WYTHEVILLE                            JULY 18, 1995


              FROM THE CIRCUIT COURT OF WYTHE COUNTY
                      Willis A. Woods, Judge

           Randolph D. Eley, Jr., for appellant.
           No brief or argument for appellee.



     Joseph Simon Cook (appellant) was convicted in a bench trial

of driving under the influence, second offense, in violation of

Wythe County Code § 8-4 and Virginia Code § 18.2-266.     On appeal,

he contends that the trial court erred in finding that:    (1) he

was in the presence of the magistrate when the police officer

testified about the circumstances of the arrest, and (2) he was

arrested within two hours of the time of the offense as required

by Code § 18.2-268.2(A).    For the reasons that follow, we affirm

the conviction.
                              BACKGROUND

     On August 1, 1993, Officer James Harrington (Harrington) of

the Town of Wytheville Police Department saw appellant driving in

the Town of Wytheville.    At 12:47 a.m., appellant made a wide
     *
      Pursuant to Code § 17.116.010 this opinion is not
designated for publication.




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turn and the front wheel of his car crossed into the on coming

lane.    Harrington stopped appellant at 12:51 a.m., detected the

smell of alcohol on his breath, and conducted several field

sobriety tests.    Harrington testified that he arrested appellant

at 1:02 a.m., but on cross-examination, Harrington agreed that

the time of arrest may have been a few minutes later at 1:09 to

1:10 a.m.    Harrington's notes prepared that morning indicated

that appellant was arrested at 1:02 a.m.
        After arresting appellant, Harrington took him to the

magistrate's office.    Harrington testified that he and appellant

were both present before the magistrate, whose office had a

window that opened into a narrow hallway.     Harrington stopped at

the window, and appellant was either standing within one to two

feet or was seated on a bench directly across from the window.

Harrington stated:    "He and I were together.   He was in my

presence when I explained to her (the magistrate) what happened.

As I recall we were both in the hallway together at the open

window, which does not have a glass."     The magistrate issued the

warrant at 1:20 a.m.; the breath test analysis was conducted

after the issuance of the warrant at 1:59 a.m.; and Harrington

executed the warrant at 2:03 a.m.      Appellant testified that he

did not make eye contact with the magistrate before the breath

test and that he was not present when the officer told the

magistrate about the offense.
                 RIGHT TO APPEAR BEFORE THE MAGISTRATE




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     Appellant argues that he was not "brought forthwith before a

magistrate" because he did not have the opportunity to speak with

the magistrate and was not in the magistrate's line of vision.

We disagree.

     Code § 19.2-82 provides as follows:
               A person arrested without a warrant
          shall be brought forthwith before a
          magistrate or other issuing authority having
          jurisdiction who shall proceed to examine the
          officer making the arrest under oath. . . .

               As used in this section the term
          "brought before a magistrate or other issuing
          authority having jurisdiction" shall include
          a personal appearance before such authority
          or any two-way electronic video and audio
          communication meeting the requirements of
          § 19.2-3.1, in order that the accused and the
          arresting officer may simultaneously see and
          speak to such magistrate or authority.


"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).   "'The finding of the judge,

upon the credibility of the witnesses and the weight to be given

their evidence, stands on the same footing as the verdict of a

jury, and unless that finding is plainly wrong, or without

evidence to support it, it cannot be disturbed.'"   Yates v.

Commonwealth, 4 Va. App. 140, 143, 355 S.E.2d 14, 16 (1987)

(quoting Lane v. Commonwealth, 184 Va. 603, 611, 35 S.E.2d 749,

753 (1945)).

     When viewed in the light most favorable to the Commonwealth,



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the evidence established that Harrington and appellant were both

present before the magistrate when Harrington explained the basis

for the arrest.   Appellant was in a narrow hallway, either

standing within one to two feet of Harrington or seated on a

bench directly across from the magistrate's window.      The trial

judge did not abuse his discretion in accepting Harrington's

testimony and not that of appellant.
                           TIME OF ARREST

     Appellant also argues that the Commonwealth failed to prove

that he was arrested within two hours of the offense as required

by Code § 18.2-268.2(A).   If he was not arrested within the

two-hour time limit, then he cannot be deemed to have consented

to the breath test, and the certificate of analysis was

inadmissible.

     Code § 18.2-268.2(A) provides as follows:
               Any person, whether licensed by Virginia
          or not, who operates a motor vehicle upon a
          highway, as defined in § 46.2-100, in this
          Commonwealth shall be deemed thereby, as a
          condition of such operation, to have
          consented to have samples of his blood,
          breath, or both blood and breath taken for a
          chemical test to determine the alcohol, drug,
          or both alcohol and drug content of his
          blood, if he is arrested for violation of
          § 18.2-266 or of a similar ordinance within
          two hours of the alleged offense.


(Emphasis added).   The "alleged offense" in a drunk driving case

is the conduct of operating a vehicle on a public highway while

under the influence of alcohol.       Overbee v. Commonwealth, 227 Va.

238, 242, 315 S.E.2d 242, 244 (1984).



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       The record in this case established that Harrington saw

appellant driving at 12:47 a.m. and stopped him at 12:51 a.m.

Neither of these times was questioned by appellant on cross-

examination.   Thus, the two-hour time limit must be measured from

the 12:47 a.m. time.   Harrington's notes reflected a time of

arrest of 1:02 a.m., but on cross-examination, appellant showed

that the time of arrest could have been closer to 1:09 or 1:10

a.m.   The magistrate issued an arrest warrant at 1:59 a.m., and

Harrington executed the warrant at 2:03 a.m.   We hold that

Harrington clearly arrested appellant within the two-hour time

limit.   Both the initial arrest at 1:02 a.m. to 1:10 a.m. and the

later execution of the warrant at 2:03 a.m. were "within two

hours of the alleged offense," which occurred when appellant was

last seen driving his vehicle at 12:47 a.m.
       Accordingly, the decision of the trial court is affirmed.

                                          Affirmed.




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