                        COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Felton and Senior Judge Overton
Argued at Chesapeake, Virginia


LEE BANKS WALKER
                                           MEMORANDUM OPINION * BY
v.   Record No. 0349-02-1                JUDGE WALTER S. FELTON, JR.
                                               APRIL 22, 2003
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                  Robert B. Cromwell, Jr., Judge

          Moody E. Stallings, Jr. (Kellam T. Parks;
          Stallings & Richardson, P.C., on brief), for
          appellant.

          Stephen R. McCullough, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Lee Walker was convicted in a bench trial of driving under

the influence of alcohol ("DUI"), third or subsequent offense, in

violation of Code §§ 18.2-266 and 18.2-270.    On appeal, Walker

contends the trial court erred in denying his motion to dismiss

the DUI charge because he was deprived of the right to and benefit

of a breath analysis.    For the following reasons, we affirm the

judgment of the trial court.

                            I.   BACKGROUND

     On July 15, 2001, Virginia Beach Police Officer Scott

Johnson observed Lee Walker's vehicle weaving.     Officer Johnson


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
activated his lights and stopped Walker.    When Officer Johnson

approached Walker, he noticed that Walker "had a very, very

strong odor of alcohol about his person."    Officer Johnson asked

Walker for his driver's license and asked him a few questions.

Some of Walker's responses were coherent, but others were not.

Officer Johnson then asked him to step out of the vehicle.

        As Walker stepped from the automobile, he almost fell over.

He managed to walk to the back of his vehicle by holding on to

it.   Officer Johnson asked Walker if he had been drinking and if

he had any medical problems or conditions.    As to the question

of medical problems or conditions, Walker responded that he had

none.    However, he responded in the affirmative to the question

regarding the consumption of alcohol.    Walker indicated that he

consumed three beers approximately two hours prior to the stop.

        Officer Johnson proceeded to conduct three field sobriety

tests.    Walker failed each test.   During the horizontal gaze

test, he could not focus at all on Officer Johnson's pen or

finger and almost fell over because he was swaying so badly.

During the one-legged stand test, in a ten-second period Walker

almost fell over twice.    Finally, during the walk and turn test,

he just stumbled around.

        As a result of Walker's failing the field sobriety tests,

Officer Johnson placed him under arrest for driving under the

influence of alcohol.    Once Walker was in custody, Officer

Johnson attempted to administer a breathalyzer test.    He

                                 - 2 -
instructed Walker to blow into the machine "hard enough" until

he heard a tone.    Officer Johnson testified he noticed Walker

"barely blew in the machine," which resulted in the machine

testing apparatus not being activated.   He informed Walker he

was not performing the test correctly, "waited a second," and

gave him a second opportunity to take the breath test.   Officer

Johnson stated that Walker once again did not blow hard enough

into the machine.   The machine registered an "invalid sample,"

and printed out a certificate of that result.   After Walker

twice blew ineffectively into the machine, and the machine

registered "invalid sample," Officer Johnson did not attempt to

administer the test again.

     On cross-examination, Officer Johnson admitted, based on

his training and knowledge of the printed manual for the

breathalyzer, the machine will reach an "invalid sample" result

if it detects a sharp rise in the blood alcohol concentration

because of "mouth alcohol."   If an "invalid sample" result

occurs, the manual directs that a twenty-minute period must be

observed before another breath test can be performed.    By

contrast, the manual states that a "deficient sample" message

signifies that the subject started blowing into the machine, but

did not meet the required parameters for a valid test, such as

not blowing hard enough.

     Walker was indicted for driving under the influence of

alcohol, third or subsequent offense, in violation of Code

                                - 3 -
§§ 18.2-266, 18.2-270, and 18.2-10.       Following the presentation

of the Commonwealth's evidence at trial, Walker made a motion to

dismiss the charge, arguing he was denied the right to and the

benefit of breathalyzer results.     The motion was denied, and

Walker was subsequently convicted.

                            II.    ANALYSIS

                 On appeal, we review the evidence in
            the light most favorable to the
            Commonwealth, granting to it all reasonable
            inferences fairly deducible therefrom. The
            judgment of a trial court sitting without a
            jury is entitled to the same weight as a
            jury verdict and will not be set aside
            unless it appears from the evidence that the
            judgment is plainly wrong or without
            evidence to support it.

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987).    Walker contends that the trial court erred in denying

his motion to dismiss the DUI charge because he was denied the

right to and benefit of a breath analysis.      We disagree.

     In viewing the evidence in the light most favorable to the

Commonwealth, we conclude that there is sufficient evidence in

the record to support the reasonable objective finding by the

trial court that Walker deliberately refused to cooperate in

submitting a breath sample.   Walker had two prior DUI

convictions.   He was arrested for his third DUI offense after

failing three field sobriety tests administered by Officer

Johnson.   He was taken into custody and was twice given the

opportunity to submit to a breath sample.      During the first


                                  - 4 -
attempted breathalyzer test, Walker barely blew into the

machine, which resulted in the machine not being activated to

take a valid breath sample.   Officer Johnson informed Walker he

was not performing the breath test properly, "waited a second,"

and gave Walker a second opportunity to perform the breath test.

Walker once again failed to blow into the machine as he was

instructed to do so by Officer Johnson.

     The second breath test yielded a result of "invalid

sample."   When the breathalyzer machine detects a sharp rise in

the blood alcohol concentration, due to residual mouth alcohol,

an "invalid sample" occurs.   Residual mouth alcohol will be

detected generally if a subject belches or vomits immediately

prior to the administration of the breath test.   As a result,

the breathalyzer operator must wait twenty minutes before

attempting to administer a subsequent breath test.

     Officer Johnson did not attempt to administer the test

again, and Walker did not indicate to Officer Johnson that there

was a medical reason why he could not provide a valid breath

sample.    See Lamay v. Commonwealth, 29 Va. App. 461, 475-76, 513

S.E.2d 411, 418 (1999).   After twice failing to obtain a valid

breath sample from Walker, it was reasonable for Officer Johnson

objectively to conclude that Walker was not cooperating and that

he would continue his non-cooperation if additional tests were

attempted.



                                - 5 -
     Accordingly, the trial court did not abuse its discretion

in denying Walker's motion to dismiss.   There was sufficient

evidence in the record for the trial court to determine that

Walker deliberately refused to cooperate in submitting to a

breath test.   In addition, from the evidence of Walker's

admission to Officer Johnson that he had consumed alcohol, his

appearance, his incoherent speech, his behavior, and his failing

field sobriety tests, there was ample evidence from which the

trial court could conclude beyond a reasonable doubt that Walker

was guilty of the offense charged.

     The judgment of the trial court is affirmed.

                                                        Affirmed.




                               - 6 -
