                    COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Overton
Argued at Alexandria, Virginia


EARL A. TERPSTRA, JR.
                                        MEMORANDUM OPINION * BY
v.        Record No. 0716-95-4         JUDGE NELSON T. OVERTON
                                            APRIL 9, 1996
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                       Jane Marum Roush, Judge
          R. Ramsey Maupin for appellant.

          Brian Wainger, Assistant Attorney General
          (James S. Gilmore, III, Attorney General;
          Margaret Ann B. Walker, Assistant Attorney
          General, on brief), for appellee.


     Earl A. Terpstra was convicted at a bench trial of driving a

motor vehicle while intoxicated, a violation of Code § 18.2-266.

 He appeals his conviction on the grounds that (1) the

certificate of breath test results did not comply with the

statute in effect as of his trial date and (2) that evidence of

his drinking after stopping his car fatally tainted the breath

test results.   For the reasons that follow, we affirm the

conviction.

     On June 15, 1994, at approximately 1:00 a.m., Terpstra was

observed by two police officers running a red light and

accelerating quickly away.   The officers pursued Terpstra's

vehicle, which was travelling between 40 to 50 miles per hour

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
through a residential zone.       They continued, lights and siren

activated, until Terpstra turned off his headlights and pulled

into his driveway. 1     The officers approached Terpstra and noticed

his red, glassy eyes and a strong odor of alcohol.       As the

officers attempted to take Terpstra into custody, he became

belligerent, and the officers were forced to use pepper spray.

Because of Terpstra's uncooperative nature, no field sobriety

tests were administered.       Terpstra admitted that he had drunk a

few beers at a bowling alley that night.       The results of his

breath test, given at the county jail, showed a blood alcohol

level of .13%.      At a trial held March 30, 1995, Terpstra

testified that he did not run a red light, that he did not see

the police officers behind him until he was home, and that after

he had shut his engine off he drank from a bottle of vodka in his

car.       He was convicted.
       Terpstra assigns error to the admission of the breath test

results at trial because the certificate did not comply with the

statutory requirements.        Code § 18.2-268.9, governing the use of

breath test results as evidence, states in pertinent part:
          Any individual conducting a breath test under
          the provisions of § 18.2-268.2 shall issue a
          certificate which will indicate that the test
          was conducted in accordance with the
          Division's specifications, the equipment on
          which the breath test was conducted has been
          tested within the past six months and has
          been found to be accurate, the name of the
       1
      Terpstra was also convicted of speeding to elude a police
officer under Code § 46.2-817, but does not contest this
conviction on appeal.



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             accused, 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, the date and time the sample was
             taken from the accused, the sample's alcohol
             content, and the name of the person who
             examined the sample.


(Emphasis added).    The 1994 Amendment to Code § 18.2-268.2 added

the emphasized language and became effective July 1, 1994,

fifteen days after the offense in question.     Terpstra's

certificate lacked this new required language.
        We hold that this omission does not render the results

inadmissible in this case.    The breath test and the certificate

were completed before the new amendment had become effective.

Every step in administering and recording the results of

Terpstra's breath test conformed the statute as it was when the

test was given.    To require compliance with a provision not yet

law defies common sense.    Code § 1-16 requires procedural

provisions of the Code in effect on the date of trial to "control

insofar as practicable."    Code § 1-16; see Smith v. Commonwealth,

219 Va. 455, 476, 248 S.E.2d 135, 148 (1978), cert. denied, 441
U.S. 967 (1979).    Conformity in this case was clearly not

practicable.

        Terpstra also argues that the after-consumed alcohol renders

the breath test results inadmissible.    This contention fails as

well.    The measurement of a blood alcohol test creates a

rebuttable presumption that the measurement accurately reflects

the blood alcohol concentration at the time of driving.       See



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Davis v. Commonwealth, 8 Va. App. 291, 299, 381 S.E.2d 11, 16

(1989).    The defendant is entitled to challenge this presumption

through evidence calling into question the accuracy of the test

results.    Id.   Terpstra attempted to rebut the presumption by

testifying that he drank alcohol after he had stopped his

vehicle.   We must determine whether the evidence presented at

trial, viewed in the light most favorable to the Commonwealth,

sufficiently rebutted the presumption.
     The trial judge heard testimony that Terpstra was stopped

after driving in a careless manner, that his eyes were red and

glassy upon exiting the vehicle, that he was violently

uncooperative with the police, and that he admitted having a few

beers earlier.    Weighed against the defendant's unsupported claim

that he drank more alcohol after stopping his car, the judge

reasonably could have concluded that Terpstra's blood alcohol

concentration was over the limit allowed by law.

     We find that the breath test results were admissible.     We

further find that the defendant's evidence did not rise to a

level sufficient as a matter of law to rebut the presumption that

the test results accurately reflect the blood alcohol

concentration of the defendant at the time he operated his

vehicle.   The conviction is affirmed.

                                           Affirmed.




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