                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Humphreys and Retired Judge Kulp ∗
Argued at Richmond, Virginia


WILLIAM LEE KAUFFMAN
                                            MEMORANDUM OPINION ∗∗ BY
v.   Record No. 1725-98-2                 JUDGE JAMES W. BENTON, JR.
                                                 JUNE 20, 2000
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS
                       William R. Shelton, Judge

             David A. Oblon (Juliet D. Hiznay; Albo &
             Oblon, L.L.P., on briefs), for appellant.

             Steven A. Witmer, Assistant Attorney General
             (Mark L. Earley, Attorney General, on brief),
             for appellee.


     The trial judge convicted William Lee Kauffman of driving a

motor vehicle while under the influence of alcohol in violation of

Code § 18.2-266.    Kauffman contends he was denied the opportunity

to observe the process of analysis and see the blood-alcohol

reading as required by Code § 18.2-268.2(B).    Therefore, he argues

the trial judge erred in refusing to suppress the certificate of

analysis of his blood alcohol level.    For the reasons that follow,

we affirm the conviction.

     ∗
       Retired Judge James E. Kulp took part in the consideration
of this case by designation pursuant to Code § 17.1-400,
recodifying Code § 17-116.01.
     ∗∗
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                                   I.

     On July 19, 1997, at 3:13 a.m., a police officer in the City

of Colonial Heights saw a motor vehicle swerving numerous times

outside the markers of the lane in which it was travelling.     He

stopped the vehicle and requested a driver's license and vehicle

registration from the driver, William Kauffman.    After the officer

noticed that Kauffman's eyes were bloodshot and that Kauffman had

a smell of alcohol about his person, he questioned Kauffman about

his alcohol consumption.    Kauffman said he had drunk two or three

glasses of wine and two to three beers, consuming the last drink

about thirty minutes before the officer stopped him.    After

Kauffman was unsuccessful in performing several dexterity tests,

the officer arrested him.

     At the police station, the officer advised Kauffman of his

obligation to take a blood or breath test pursuant to Virginia's

implied consent law.   When Kauffman elected to take a breath test,

the officer tested the blood alcohol content of Kauffman's breath

using the Intoxilyzer 5000 machine, Series 768VA.

     Prior to trial, Kauffman moved to suppress the certificate of

analysis of the blood alcohol test.     Kauffman argued that the

certificate should be suppressed because he was not provided the

opportunity to see either the test results of all breath samples

or the entire analysis as required under Code §§ 18.2-268.2 and

18.2-269.9.



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     At the suppression hearing, Robert Masolf of the Division of

Forensic Science testified that the Intoxilyzer 5000 takes an "air

blank" to check the surrounding air, prior to testing a person's

breath.   After that check, the machine runs a simulator sample

with a wet bath simulator that must meet certain tolerances and

then runs another "air blank" to clear the chamber.   When the

person blows through the breath tube to the chamber, the machine

analyzes the person's breath for alcohol and stores the results

into memory.   The machine then runs another "air blank" to clear

the chamber, waits two minutes, and then asks for another sample.

When the person breathes into the machine a second time, it

calculates the alcohol content of the second sample and compares

it with the alcohol content of the first sample.   If the two

samples are within .02 of each other, the machine takes the lower

of the two samples and presents it as the final result.   That

result is displayed on the machine and printed on a certificate.

     On a weekly basis, the Division of Forensic Science downloads

the testing results from each machine via a modem connected to the

Division's offices in Richmond and obtains readings of both

comparison samples from each machine.   The Division then reviews

the results of all tests conducted by each machine for quality

control and to "troubleshoot" any operational problems.   Masolf

testified that the accused may obtain the higher of the two

samples by request from the Division.   After hearing this



                               - 3 -
evidence, the trial judge requested counsel to brief their

arguments and took the motion under advisement.

     At trial, Kauffman entered a plea of not guilty.    The

certificate of analysis, which indicated that Kauffman's blood

alcohol content was .12 grams per 210 liters of breath, was

admitted in evidence subject to the judge's ruling on the motion

to suppress.    Following the presentation of evidence, the trial

judge stated that "if the certificate doesn't come in, I don't

think the evidence is sufficient for me to find beyond a

reasonable doubt that he was intoxicated, not from the evidence

that I have."   At a hearing held at the conclusion of the trial,

the trial judge denied Kauffman's motion to suppress the

certificate and convicted Kauffman of driving under the influence

of alcohol.    This appeal followed.

                                 II.

     Code § 18.2-268.2(B) provides as follows:

          Any person so arrested for a violation of
          § 18.2-266(i) or (ii) or both, or
          § 18.2-266.1 or of a similar ordinance shall
          submit to a breath test. If the breath test
          is unavailable or the person is physically
          unable to submit to the breath test, a blood
          test shall be given. The accused shall,
          prior to administration of the test, be
          advised by the person administering the test
          that he has the right to observe the process
          of analysis and to see the blood-alcohol
          reading on the equipment used to perform the
          breath test. If the equipment automatically
          produces a written printout of the breath
          test result, the printout, or a copy, shall
          be given to the accused.


                                - 4 -
To implement this statute, Code § 18.2-268.9 provides, in

pertinent part, that "[a]ny individual conducting a breath test

under the provisions of [Code] § 18.2-268.2 shall issue a

certificate which will indicate . . . 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."   In addition, Code

§ 18.2-268.9 provides that the certificate is admissible "when

attested by the individual conducting the breath test."

     This appeal is controlled by our ruling in Rasmussen v.

Commonwealth, 31 Va. App. 233, 522 S.E.2d 401 (1999).     In

response to an identical claim, we ruled as follows:

          [Appellant] also contends that the term
          "process of analysis" necessarily
          encompasses the analysis of both samples
          taken and that, therefore, he was entitled
          to view the results obtained from each
          sample. However, when construed in the
          context of Code § 18.2-268.2 in its
          entirety, we find that the term "process of
          analysis" does not enlarge the scope of what
          [appellant] is entitled to review. A
          distinction must be made between the right
          to see the steps undertaken to achieve a
          result ("the process of analysis," such as
          the taking of a sample), the operation of
          the testing machine and the print-out of the
          test results, and the right to see the
          result itself. Here, the statute clearly
          limits an arrestee's right to "see[ing] the
          blood alcohol reading [printed] on the
          equipment used to perform the breath test."
          Code § 18.2-268.2(B).

             Based on our holding in Breeden v.
          Commonwealth, 15 Va. App. 148, 149, 421
          S.E.2d 674, 675 (1992), [appellant] further

                              - 5 -
            contends that the failure to provide him the
            opportunity to review the test result of the
            other sample deprived him of access to
            potentially exculpatory breathalyzer
            evidence. This argument also lacks merit.

               The testimony of the breathalyzer
            operator at trial established that the
            machine was properly calibrated and that it
            printed a test result reflecting the lower
            of the two sample readings. Thus, the only
            evidence not made immediately available to
            Rasmussen was evidence of an inculpatory
            nature.

               As [appellant] was afforded the
            opportunity to view the print-out of the
            blood-alcohol reading taken by the
            breathalyzer machine, the requirements of
            Code §§ 18.2-268.2 and 18.2-268.9 were met.

Id. at 239-40, 522 S.E.2d at 404 (footnotes omitted).

     For these reasons, we hold that the trial judge did not err

in denying Kauffman's motion to suppress the certificate of

analysis.   Accordingly, we affirm the judgment.

                                                           Affirmed.




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