                        COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Felton
Argued at Richmond, Virginia


MICHAEL JOSEPH DOTSON
                                           MEMORANDUM OPINION * BY
v.   Record No. 1416-02-2                   JUDGE LARRY G. ELDER
                                                 MAY 6, 2003
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                    Timothy J. Hauler, Judge

          Emmet D. Alexander (Gates & Alexander,
          P.L.C., on brief), for appellant.

          John H. McLees, Senior Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Michael Joseph Dotson (appellant) appeals from his bench

trial conviction for driving under the influence in violation of

Code § 18.2-266, his second such offense in five years.     On

appeal, he contends the trial court erroneously admitted the

certificate of analysis showing the alcohol content of his

breath because, although he sought to obtain a copy in

compliance with the requirements of Code § 19.2-187, neither

"the clerk" nor the "attorney for the Commonwealth" provided him

with a copy of the certificate prior to trial as required by

that code section.   We hold appellant's notice to the


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Commonwealth of his request met the requirements of the

applicable version of Code § 19.2-187.   Thus, we reverse the

trial court's ruling.   Further, based on the trial court's

express finding that the evidence was insufficient to support

the conviction in the absence of the certificate of analysis, we

dismiss the warrant.

                                I.

                            BACKGROUND

     On December 2, 2001, appellant was arrested for the instant

DUI offense.   Following his conviction in district court on

January 17, 2002, appellant noted an appeal to the circuit

court.

     On February 14, 2002, while awaiting trial in circuit court

on the DUI appeal, appellant was arrested for driving on a

suspended license and failing to stop for the police.     Trial on

those charges was set for March 28, 2002.

     On March 22, 2002, appellant filed in the circuit court a

letter that was addressed to the clerk of that court and

contained the following heading:

     RE:   Commonwealth v. Michael Dotson
           Letter of Representation, Motion to Suppress
                and Motion for Discovery
           Request for Copy of Certificate of Analysis

Within the body of the letter, appellant requested "any

certificate of analysis filed with your office regarding this

matter."


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     The letter itself included no indication that counsel had

provided the Commonwealth's Attorney's Office with a copy of the

letter.   However, the letter referenced enclosed suppression and

discovery motions that appellant also asked the court to file.

The suppression and discovery motions each included a

certificate of service showing the motion was hand-delivered to

the Commonwealth's Attorney's Office on March 22, 2002.   Those

motions indicated in their captions that they were to be filed

"IN THE CIRCUIT COURT OF CHESTERFIELD COUNTY," but the discovery

motion cited Rule 7C:5 of the Rules of the Supreme Court of

Virginia, a rule that expressly pertains only to discovery in "a

General District Court."   The discovery motion read in relevant

part as follows:

                COMES NOW the Defendant, by counsel,
           and moves the Court to require the State to
           deliver to counsel for the Defendant any
           exculpatory or inculpatory evidence within
           the meaning of the above referenced cases or
           rules, including, but not limited to:

               *     *     *    *      *    *     *

                (c) the results of any chemical tests,
           scientific tests, analyses and any blood,
           breath, drug analysis or refusal to submit
           to such test and certificates of analysis
           that the Commonwealth intends to use at
           trial, this is intended to give you formal
           notice of defendant's request from the
           clerk's office for the certificate of
           analysis; . . . .


(Emphasis added).   Appellant argued at trial and the

Commonwealth conceded on brief on appeal that a copy of the

                               - 3 -
letter to the circuit court clerk requesting the certificate was

provided to the Commonwealth's Attorney in conjunction with the

discovery motion.

     On March 26, 2002, the Commonwealth filed a response to

appellant's discovery motion "pursuant to Rule 7C:5" "IN THE

GENERAL DISTRICT COURT OF THE COUNTY OF CHESTERFIELD," noting a

trial date of March 28, 2002.   The Commonwealth responded to

some of the requests, objected to others, and indicated, "No

Certificate of Analysis filed."   The Commonwealth apparently

believed, mistakenly, that the discovery motion pertained to the

charges that were then pending in general district court and

scheduled for trial on March 28, 2002.   However, the

Commonwealth apparently understood, correctly, that the

suppression motion related to the DUI charge pending in circuit

court and set for trial on April 3, 2002.

     At trial in circuit court on April 3, 2002, on the DUI

charge, appellant objected to admission of the certificate of

analysis because he had not received a copy of the certificate

from the clerk or the attorney for the Commonwealth, despite

having requested a copy from the clerk's office in the manner

prescribed by the statute and having given the Commonwealth's

Attorney's Office notice of the request.    The Commonwealth's

attorney represented that appellant's counsel "has been told by

our office that we will no longer respond to his motions for

discovery on misdemeanors appealed to Circuit Court.    We told

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him that several months ago."   The Commonwealth's attorney also

argued that appellant's request for the certificate did not

comply with Code § 19.2-187 because appellant did not provide "a

cc copy to [the Commonwealth's Attorney's Office] of the

[request] to the Clerk's Office of the Circuit Court."

     Appellant responded that his request to the clerk's office

for the certificate complied with the statute and that the

statute did not specify the manner in which notice of that

request was to be given to the Commonwealth's Attorney's Office.

He argued that the discovery response he received from the

Commonwealth's Attorney's office indicated the assistant

Commonwealth's attorney who filed the response in fact read the

motion containing the notice but mistakenly believed the motion

applied to a different charge pending in a different court.

     The trial court concluded "the Commonwealth was not

provided with notice as envisioned by this statute" and admitted

the certificate of analysis into evidence.

     The certificate of analysis showed a breath alcohol content

of 0.10%.   The trial court convicted appellant of the charged

offense based on the certificate.   However, it also found as

follows:    "I will state this on the record . . . .   [B]ut for

the BAC results, I don't think there's sufficient evidence to

convict [appellant] of driving under the influence, [and] . . .

I'll make that finding."



                                - 5 -
                               II.

                            ANALYSIS

     The version of Code § 19.2-187 applicable to the present

proceedings provided as follows:

          In any hearing or trial of any criminal
          offense . . . , a certificate of analysis of
          a person performing an analysis or
          examination, performed in any laboratory
          operated by . . . the Division of Forensic
          Science . . . when such certificate is duly
          attested by such person, shall be admissible
          in evidence as evidence of the facts therein
          stated and the results of the analysis or
          examination referred to therein, provided
          . . . (ii) a copy of such certificate is
          mailed or delivered by the clerk or attorney
          for the Commonwealth to counsel of record
          for the accused at least seven days prior to
          the hearing or trial upon request made by
          such counsel to the clerk with notice of the
          request to the attorney for the
          Commonwealth. The request to the clerk
          shall be in writing at least ten days prior
          to trial and shall clearly state in its
          heading "Request for Copy of Certificate of
          Analysis."

2000 Va. Acts, ch. 336. 1




     1
       The statute was subsequently amended. See 2002 Va. Acts,
ch. 832. Effective July 1, 2002, Code § 19.2-187 provides that
"[t]he request to the clerk shall be on a form prescribed by the
Supreme Court." 2002 Va. Acts, ch. 832. The form promulgated
by the Supreme Court, titled "REQUEST FOR COPY OF CERTIFICATE OF
ANALYSIS," contains the following language: "I certify that a
copy of this request has been mailed or delivered to the
Commonwealth's Attorney of this jurisdiction on this ________
day of __________, ____________." Thus, the rule and related
form now clearly specify the method by which a defendant
requesting a copy of a certificate of analysis from the clerk
must give notice to the Commonwealth of the request.


                              - 6 -
     Under Code § 19.2-187, "a certificate of analysis is

admissible to prove the truth of its contents without the

appearance in court of the technician who conducted the

analysis, provided that the Commonwealth strictly complies with

several 'specific safeguards' listed in the statute."     Taylor v.

Commonwealth, 28 Va. App. 1, 6, 502 S.E.2d 113, 115 (1998) (en

banc) (quoting Myrick v. Commonwealth, 13 Va. App. 333, 336-37,

412 S.E.2d 176, 178 (1991)).    "When the Commonwealth seeks to

admit a certificate of analysis containing hearsay evidence, it

has the burden of proving that the certificate satisfies the

requirements of Code § 19.2-187 . . . ."     Id. at 7, 502 S.E.2d

at 115.   "A certificate of analysis is not admissible if the

Commonwealth fails strictly to comply with the provisions of

Code § 19.2-187.   Prejudice to the defendant from a failure to

comply need not be shown."     Woodward v. Commonwealth, 16

Va. App. 672, 674, 432 S.E.2d 510, 512 (1993) (citations

omitted) (emphasis added).

     Here, it is undisputed that counsel for appellant requested

a copy of the certificate from the clerk in the manner required

by Code § 19.2-187 and that neither "the clerk" nor the

"attorney for the Commonwealth" provided the requested copy.

Nevertheless, the Commonwealth argued and the trial court ruled

that the certificate was admissible because appellant failed to

give the Commonwealth's Attorney's Office "notice [of the

request] as envisioned by [Code § 19.2-187]."    We disagree.

                                 - 7 -
Although the applicable version of the statute clearly specifies

the form that the request to the clerk's office must take, it

contains no requirements regarding the method by which counsel

must give "notice of the request to the attorney for the

Commonwealth."   (Emphasis added).

     "Where a statute is unambiguous, the plain meaning is to be

accepted without resort to the rules of statutory

interpretation."    Last v. Virginia State Bd. of Med., 14

Va. App. 906, 910, 421 S.E.2d 201, 205 (1992).   "'Courts are not

permitted to rewrite statutes.    This is a legislative

function.'"    Barr v. Town & Country Properties, Inc., 240 Va.

292, 295, 396 S.E.2d 672, 674 (1990) (quoting Anderson v.

Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841 (1944)).      "We

give the words of a statute 'their common, ordinary and accepted

meaning,' absent an indication by the legislature to the

contrary."    Germek v. Germek, 34 Va. App. 1, 8, 537 S.E.2d 596,

600 (2000) (quoting Gen. Trading Corp. v. Motor Vehicle Dealer

Bd., 28 Va. App. 264, 268, 503 S.E.2d 809, 811 (1998)).      Thus,

we turn to Black's Law Dictionary, which provides that a person

has notice of a fact "if[, inter alia,] that person (1) has

actual knowledge of it; (2) has received a notice of it; (3) has

reason to know about it; . . . or (5) is considered as having

been able to ascertain it by checking an official filing or

recording."    Black's Law Dictionary 1087 (7th ed. 1999); see

also 21A Michie's Jurisprudence, Words and Phrases 386 (2000

                                 - 8 -
Repl. Vol.) ("Notice, generally, is any knowledge, however

acquired, which is sufficient to put a party on enquiry."

(quoting Cain v. Cox, 23 W. Va. 594, 609 (1884))).

     Here, appellant argued at trial, and the Commonwealth

conceded on brief, that counsel for appellant provided to the

Commonwealth's Attorney's Office a copy of the letter to the

Chesterfield County Circuit Court Clerk requesting the

certificate of analysis.   That the letter did not include a

"cc:" reference indicating the Commonwealth was to receive a

copy is not dispositive because such a notation is not required

by Code § 19.2-187.   See Woodward, 16 Va. App. at 675, 432

S.E.2d at 512 (holding fact that accused requested copy of

certificate before rather than after filing did not render

certificate admissible because "the statute contains no such

[requirement], and we have no authority to impose it").

     Furthermore, the fact that the copy of the request provided

to the Commonwealth may have been attached to the motion for

discovery served on the Commonwealth also is not dispositive

under the facts of this case.    See id.   An assistant

Commonwealth's attorney in fact responded to the motion for

discovery and, thus, presumably had actual notice of the

contents of the letter, see Black's, supra, at 1087 (defining

notice as "actual knowledge . . . [or] reason to know"), which

was clearly addressed to the circuit court clerk rather than the



                                - 9 -
district court clerk and which indicated in its heading that it

included a "Request for Copy of Certificate of Analysis."

     Finally, the discovery motion itself listed the circuit

court rather than the district court in its caption and

indicated internally, in the portion of the motion requesting

copies of test results and certificates of analysis, that "this

is intended to give you formal notice of defendant's request

from the clerk's office for the certificate of analysis."

Appellant's counsel conceded he was not entitled to discovery in

a misdemeanor appeal, and for this reason, the mere presence of

the "formal notice" statement in his discovery motion, standing

alone, would have been insufficient to provide the Commonwealth

with notice of the request under Code § 19.2-187.   Here,

however, the Commonwealth's Attorney's Office specifically

responded to the request containing that express "formal notice"

language by indicating that "No Certificates of Analysis [were]

filed."   Neither the fact that the discovery motion erroneously

referenced a rule applicable only in district court nor the fact

that the assistant Commonwealth's attorney handling the

discovery motion apparently erroneously concluded the motion

pertained to a related district court matter was sufficient to

negate the fact that the motion's caption clearly listed the

circuit court rather than the general district court and

accompanied a copy of a letter specifically addressed to the

circuit court.

                              - 10 -
     We do not intend by our ruling to condone gamesmanship in

the practice of law or to encourage the filing of frivolous

pleadings or motions.   See, e.g., Code § 8.01-271.1 (permitting

imposition of sanctions on attorney who signs pleading, motion

or other paper "interposed for an[] improper purpose"); Bennett

v. Commonwealth, 236 Va. 448, 460-61, 374 S.E.2d 303, 311 (1988)

(upholding trial court's granting of motion for mid-trial

continuance on ground that "[a]mbush, trickery, stealth,

gamesmanship, one-upmanship, [and] surprise have no legitimate

role to play in a properly conducted trial").   Nevertheless, we

hold these facts establish that the Commonwealth's Attorney's

Office both "received a notice of [appellant's request for the

certificate]" and "ha[d] reason to know about it."    See Black's,

supra, at 1037; see also 21A Michie's, supra, at 386.

                               III.

     For these reasons, we hold that appellant's notice to the

Commonwealth of his request to the circuit court clerk's office

for the certificate of analysis met the requirements of the

applicable version of Code § 19.2-187.   Thus, we reverse the

trial court's ruling admitting the certificate.    Further, based

on the trial court's express finding that the evidence was

insufficient to support the conviction in the absence of the

certificate of analysis, we dismiss the warrant.

                                           Reversed and dismissed.



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