                  COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Senior Judge Hodges
Argued at Richmond, Virginia


DAVID EDWARD POLLARD
                                        MEMORANDUM OPINION * BY
v.   Record No. 2638-98-2                JUDGE LARRY G. ELDER
                                          SEPTEMBER 21, 1999
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                   John F. Daffron, Jr., Judge

          Fredrick S. Kaufman (Nachman & Kaufman,
          L.L.P., on brief), for appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     David Edward Pollard (appellant) was convicted in a bench

trial for driving under the influence of alcohol, his third such

conviction in five years, in violation of Code § 18.2-266.   On

appeal, he contends the trial court erroneously admitted the

results of a breathalyzer test into evidence.    He argues

credible evidence establishes, contrary to testing requirements,

that he had cigarette tobacco in his mouth before and during the

test and that cigarette tobacco contains alcohol likely to have




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
skewed the test results. 1   For the reasons that follow, we affirm

appellant's conviction.

     "'The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be

disturbed on appeal in the absence of an abuse of discretion.'"

James v. Commonwealth, 18 Va. App. 746, 753, 446 S.E.2d 900, 904

(1994) (quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371

S.E.2d 838, 842 (1988) (citation omitted)).    Ordinarily,

          [t]he measure of the burden of proof with
          respect to factual questions underlying the
          admissibility of evidence is proof by a
          preponderance of the evidence. . . . In
          determining whether the Commonwealth has met
          its burden, the trial court, acting as a
          fact finder, must evaluate the credibility
          of the witnesses, resolve the conflicts in
          their testimony and weigh the evidence as a
          whole. Its factual finding "is to be given
          the same weight by the appellate court as is
          accorded the finding of fact by a jury."




     1
       The only issue raised by appellant in regard to the
breathalyzer results was its admission into evidence. The
precise issue on which this appeal was granted was "[w]hether
the court erred in ruling the Certificate of Analysis admissible
when the defendant presented evidence of having chewed cigarette
tobacco between the time of his arrest and the time of the
analysis." To the extent that appellant now attempts to
challenge the underlying reliability or accuracy of the
breathalyzer itself, rather than the breath sample it analyzed,
or the sufficiency of the evidence to support his conviction, no
appeal was granted on either of these issues. Therefore, we do
not consider them on appeal. See Rule 5A:12(c); Cruz v.
Commonwealth, 12 Va. App. 661, 664 n.1, 406 S.E.2d 406, 407 n.1
(1991).


                                - 2 -
Albert v. Commonwealth, 2 Va. App. 734, 738, 347 S.E.2d 534, 536

(1986) (quoting Witt v. Commonwealth, 215 Va. 670, 674, 212

S.E.2d 293, 296-97 (1975) (citations and footnote omitted)).

     Code § 18.2-268.2 provides, in relevant part, that "[a]ny

person . . . arrested for a violation of § 18.2-266(i) or (ii)

. . . 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."   Under Code

§ 18.2-268.9, "[t]o be capable of being considered valid as

evidence in a prosecution under § 18.2-266 . . . , chemical

analysis of a person's breath shall be performed . . . in

accordance with methods approved by the Department of Criminal

Justice Services, Division of Forensic Science."   The code also

provides, however, that

          [t]he steps set forth in §§ 18.2-268.2
          through 18.2-268.9 relating to taking,
          handling, identifying and disposing of blood
          or breath samples are procedural and not
          substantive. Substantial compliance shall
          be sufficient. Failure to comply with any
          steps or portions thereof . . . shall not of
          itself be grounds for finding the defendant
          not guilty, but shall go to the weight of
          the evidence and shall be considered with
          all the evidence in the case; however, the
          defendant shall have the right to introduce
          evidence on his own behalf to show
          noncompliance with the aforesaid procedures
          or any part thereof, and that as a result
          his rights were prejudiced.

Code § 18.2-268.11.   The Commonwealth bears the burden of

proving substantial compliance with the statutes' requirements.


                               - 3 -
See Snider v. Commonwealth, 26 Va. App. 729, 732, 496 S.E.2d

665, 666 (1998).   In evaluating whether the test as administered

substantially complied with the governing regulations, the trial

court is entitled to consider testimony before it regarding the

impact of the testing procedures on the reliability of the

outcome.   See Hudson v. Commonwealth, 21 Va. App. 184, 186, 462

S.E.2d 913, 914 (1995) (reversing conviction because

Commonwealth failed to present any evidence permitting finding

of substantial compliance).

     Here, appellant contends, in essence, that the Commonwealth

failed to prove substantial compliance with statutory

requirements for administering the breath test because the

evidence established he had cigarette tobacco in his mouth

before and during the test and the Commonwealth failed to prove

that alcohol in the tobacco did not skew the breathalyzer

results.   As a result, he argues, the trial court erred in

admitting the breathalyzer test results.   We reject this

contention and hold that the evidence supports a finding of

substantial compliance, permitting admission of the results

under Code § 18.2-268.11.

     Assuming without deciding that appellant had the cigarette

tobacco in his mouth during the twenty-minute observation period

or during the test itself, this fact does not render the

resulting certificate of analysis inadmissible.   Pursuant to

Code § 18.2-268.11, as set out above, "[s]ubstantial compliance

                               - 4 -
[with the procedures for taking a breath sample] shall be

sufficient.    Failure to comply with any steps or portions

thereof . . . shall go to the weight of the evidence and shall

be considered with all the evidence in the case."   Here, the

evidence permitted a finding, by at least a preponderance of the

evidence, that any alcohol in appellant's mouth did not skew the

breath test results and, therefore, that appellant's breath test

substantially complied with statutory requirements for its

admission into evidence.    The information contained in the

manual for the Intoxilyzer 5000 breathalyzer machine indicates

that the presence of "mouth alcohol" in the sample will cause a

spike in the breath sample curve which, in turn, will cause the

machine to report an "INVALID SAMPLE."   Because Officer Kifer

confirmed that the machine did not report an invalid sample in

appellant's case, the evidence supported a finding that the test

substantially complied with the statute, and the trial court did

not err in admitting the test results into evidence.   Appellant

was permitted, in compliance with the statute, "to introduce

evidence on his own behalf to show noncompliance with the

aforesaid procedures . . . and that as a result his rights were

prejudiced."    Code § 18.2-268.11.




                                - 5 -
     For these reasons, we hold that the trial court did not err

in denying appellant's motion to suppress the certificate.

Therefore, we affirm appellant's conviction.

                                                       Affirmed.




                              - 6 -
