                   COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Annunziata
          and Senior Judge Duff
Argued at Alexandria, Virginia


CHARLES R. CAREY, S/K/A
 CHARLES RISING CAREY
                                            MEMORANDUM OPINION * BY
v.   Record No. 1888-98-4                    JUDGE CHARLES H. DUFF
                                                APRIL 25, 2000
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                    M. Langhorne Keith, Judge

           J. Burkhardt Beale (Boone, Beale, Cosby &
           Long, on brief), for appellant.

           (Mark L. Earley, Attorney General; Donald E.
           Jeffrey, III, Assistant Attorney General, on
           brief), for appellee. Appellee submitting
           on brief.


     On appeal, Charles Rising Carey (appellant) challenges his

conviction for driving while intoxicated.    He contends that the

Commonwealth denied "his statutory or due process rights to

observe the process on the breath test machine pursuant to the

Fifth and Fourteenth Amendments to the United States Constitution

and Virginia Code §[§] 18.2-268.2 and . . . 18.2-268.9."     We

disagree, and affirm the conviction.

     In lieu of filing a trial transcript, appellant filed a

written statement of facts, see Rule 5A:8(c), indicating that he

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
made a motion "to deny the introduction of the breath sample

results based upon the fact Carey was not allowed to observe the

process of the two separate samples on the machine even though he

had been explained that he had the right to do so."    That is the

only argument contained in the record relating to the

Commonwealth's failure to provide two samples.

       In Rasmussen v. Commonwealth, 31 Va. App. 233, 522 S.E.2d

401 (1999), we addressed Rasmussen's contention "that the result

of a breathalyzer test administered to him following his arrest

was improperly admitted at trial."      Id. at 235-36, 522 S.E.2d at

402.   Relying on Code §§ 18.2-268.2(B) and 18.2-268.9, Rasmussen

made the same argument as appellant; he contended he was denied

his right to obtain and observe the results "for each and every

breath sample taken."    Id. at 237-38, 522 S.E.2d at 403.    We

held that "nothing in the [DUI] statutes indicates an intention

to give an accused the right to immediately view results of a

breath test other than those actually printed out by the

equipment used to conduct the test."      Id. at 239, 522 S.E.2d at

404.   We concluded that Code § 18.2-268.2(B) "clearly limits an

arrestee's right to 'see[ing] the blood alcohol reading

[printed] on the equipment used to perform the test.'"       Id.

(citation omitted).    Thus, where an accused is "afforded the

opportunity to view the print-out of the blood-alcohol reading

taken by the breathalyzer machine, the requirements of Code



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§§ 18.2-268.2 and 18.2-268.9 [a]re met."    Id. at 240, 522 S.E.2d

at 404.

     Viewed in the light most favorable to the Commonwealth, see

Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678

(1997), the evidence proved that appellant "gave two breath

samples, but only one sample result was reported on the [machine

and on the] paperwork."   Matthew Smallwood, the breath test

operator, attested to the certificate of analysis and certified

that the certificate was "an accurate record of the test

conducted," that the test was conducted in accordance with the

equipment, methods and specifications approved by the Division of

Forensic Science and that the equipment was recently tested and

found to be accurate.   See Rasmussen, 31 Va. App. at 239 n.2, 522

S.E.2d at 404 n.2 (explaining that properly attested certificate

of analysis "assured an accused that the machine is operating as

designed" and that, "[i]n the case of the I[ntoxilyzer]-5000, the

certification indicates that the machine accurately tested the two

breath samples and reported the lower of the two samples tested").

     Appellant observed all the process the legislature intended

he observe under the statute.   Therefore, he suffered no

statutory violation.    Accordingly, the trial court did not err

in admitting the certificate of analysis.

     Appellant's allegation that he "suffered from a deprival of

the due process of law from obtaining exculpatory evidence on



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his behalf" was not raised at trial.   Accordingly, we will not

consider it for the first time on appeal.   See Rule 5A:18.

     For the foregoing reasons, the judgment of the trial court

is affirmed.

                                                         Affirmed.




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