                     COURT OF APPEALS OF VIRGINIA

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


ROBERT EUGENE HUGHES, III
                                             MEMORANDUM OPINION** BY
v.   Record No. 2802-96-4                     JUDGE LARRY G. ELDER
                                                NOVEMBER 25, 1997
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                        Jack B. Stevens, Judge
             Mark J. Yeager for appellant.

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



         Robert E. Hughes (appellant) appeals his conviction of

driving under the influence of alcohol in violation of Code

§ 18.2-266.    He contends that the trial court erred when it

admitted into evidence a certificate of blood alcohol analysis

stating the result of a breath test he took shortly after his

arrest.    For the reasons that follow, we reverse and remand.

                                  I.

                                 FACTS

     On May 16, 1996, at approximately 8:30 a.m., appellant was

arrested by Trooper Loftis for driving under the influence of

     *
      On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
     **
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
alcohol.   The trooper transported appellant to headquarters where

Trooper Mungin administered a breath test to appellant.      The test

indicated that appellant's blood alcohol content was in excess of

the legal limit allowed for operating a motor vehicle.    The

result of this test was recorded on a certificate of blood

alcohol analysis (certificate).

     On August 13, appellant filed a precipe with the trial court

requesting the clerk to send him a copy of the certificate.     The

clerk did not mail or deliver a copy of the certificate prior to

appellant's trial on October 3.
     At trial, appellant made a motion in limine to exclude the

certificate because the clerk did not satisfy the "mailing

requirement" of Code § 19.2-187.    The trial court granted the

motion.    The Commonwealth subsequently moved for a nolle

prosequi, which the trial court denied.    The trial court then

granted a recess of approximately two hours, during which the

Commonwealth located Trooper Mungin.

     When appellant's trial resumed, the Commonwealth called

Trooper Mungin to testify.   The written statement of facts

summarizing the trooper's testimony indicates that he identified

the certificate, but did not otherwise testify about its contents

or the breath test he administered to appellant.   The

Commonwealth then moved the certificate into evidence.    The trial

court overruled appellant's objection to the certificate and

admitted it into evidence.   The trial court subsequently



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convicted appellant of driving under the influence of alcohol.




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                                II.

   ADMISSIBILITY OF THE CERTIFICATE OF BLOOD ALCOHOL ANALYSIS

     Appellant contends that the trial court erred when it

admitted the certificate because the Commonwealth failed to

establish compliance with all of the safeguards of Code

§ 19.2-187 and the testimony of Trooper Mungin did not render the

certificate admissible.   We agree.

     It is well established that hearsay evidence is considered

incompetent and is generally inadmissible unless it falls within

an exception to this exclusionary rule.   See Neal v.

Commonwealth, 15 Va. App. 416, 420-21, 421 S.E.2d 521, 524

(1992).   Hearsay evidence is defined as:
           testimony in court, or written evidence, of a
           statement made out of court, the statement
           being offered as an assertion to show the
           truth of matters asserted therein, and thus
           resting for its value upon the credibility of
           the out-of-court asserter.


Stevenson v. Commonwealth, 218 Va. 462, 465, 237 S.E.2d 779, 781

(1977) (citation omitted) (emphasis added).   The hearsay rule

applies to out-of-court statements contained in written reports

offered to prove the results of tests or analysis conducted out

of court.   See Myrick v. Commonwealth, 13 Va. App. 333, 336-37,

412 S.E.2d 176, 178 (1991)); see also Bradshaw v. Commonwealth,

16 Va. App. 374, 380, 429 S.E.2d 881, 885 (1993) (citing William

v. Morris, 200 Va. 413, 417, 105 S.E.2d 829, 832 (1958)).

     The General Assembly has created an exception to the hearsay

rule for the contents of written certificates of analysis.    See



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Code § 19.2-187; Gray v. Commonwealth, 220 Va. 943, 945, 265

S.E.2d 705, 706 (1980); Allen v. Commonwealth, 3 Va. App. 657,

662-63, 353 S.E.2d 162, 165 (1987).    However, as a foundation for

the admission of hearsay statements contained in certificates of

analysis, the Commonwealth must prove that it strictly complied

with the specific safeguards set forth in Code § 19.2-187,

including the "attestation" requirement, the "filing"

requirement, and the "mailing" requirement. 1    See Myrick, 13 Va.

App. at 337, 412 S.E.2d at 178; Neal, 15 Va. App. at 420, 425
S.E.2d at 524 (stating that "[t]he party seeking to rely on an

exception to the hearsay rule has the burden of establishing

admissibility").    If the Commonwealth fails to establish the

foundation required by Code § 19.2-187, then any hearsay

     1
      Code § 19.2-187 states in relevant part:

          In any hearing or trial of any criminal
          offense . . . a certificate of analysis of a
          person performing an analysis or examination,
          performed in [one of the laboratories
          mentioned in the statute] 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 (i) the certificate of
          analysis is filed with the clerk of the court
          hearing the case at least seven days prior to
          the hearing or trial and (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 of such counsel.

(Emphasis added).




                                 -5-
contained in a certificate of analysis is inadmissible to prove

the truth of what it asserts.

     We hold that the trial court erred when it admitted the

certificate to prove the result of the breath test administered

to appellant shortly after his arrest.   The Commonwealth concedes

that the clerk failed to comply with appellant's request for a

copy of the certificate prior to his trial.   Because the mailing

requirement was not satisfied, Trooper Mungin's hearsay

statements contained in the certificate were not admissible "as

evidence of the facts . . . and the results of the analysis . . .

referred to therein."   Code § 19.2-187; see also Copeland v.

Commonwealth, 19 Va. App. 515, 517, 452 S.E.2d 876, 877 (1995);

Mullins v. Commonwealth, 12 Va. App. 372, 374-75, 404 S.E.2d 237,

239 (1991).

     The Commonwealth contends that Trooper Mungin's testimony

justified admitting the certificate.   It cites a passage in Gray

in which the Supreme Court stated that
          in the absence of the preparer of the
          certificate as a witness at trial, the
          failure of the Commonwealth fully to comply
          with the . . . provisions of [Code]
          § 19.2-187 renders the certificate
          inadmissible.

Gray, 220 Va. at 945, 265 S.E.2d at 706.   It argues that this

passage indicates that the in-court appearance of the preparer of

a certificate of analysis to "certify" the document is sufficient

to render its out-of-court statements admissible for their truth.

We disagree.



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     The Supreme Court's dicta in Gray must be read together with

its subsequent acknowledgement in that case that Code § 19.2-187

creates an exception to the hearsay rule.       See id. (stating that

Code § 19.2-187 "undertakes to make admissible evidence which

otherwise might be subject to a valid hearsay objection").      It is

axiomatic that, in order for a written document to be admissible

to prove the truth of its contents, the document must be properly

authenticated and free of inadmissible hearsay.
          [I]t is often mistakenly supposed that
          authentication of a document alone will
          establish its admissibility. It will not.
          The fact that a document is genuine does not
          mean that it is admissible. The genuine
          document must still meet the requirements of
          relevancy, etc., before it can be admitted,
          and the hearsay rule prohibits the admission
          of many a perfectly genuine document.


Charles E. Friend, The Law of Evidence in Virginia § 15-1 (4th

ed. 1993) (emphasis in original).       The record established that,

even after Trooper Mungin testified, the certificate still

contained inadmissible hearsay.    The summary of Trooper Mungin's

testimony contained in the written statement of facts indicates

that he merely "identified" the certificate.      The summary does

not indicate that the trooper testified in court regarding the
administration and result of the breath test itself.      Because

Trooper Mungin did not testify about the facts surrounding the

breath test, the certificate still contained written evidence of

his out-of-court statement that appellant's blood alcohol content

was over the legal limit at the time of the test.       See Stevenson,




                                  -7-
218 Va. at 465, 237 S.E.2d at 781.      Thus, assuming that Trooper

Mungin authenticated the certificate, its contents were

inadmissible because they were offered to prove the truth of the

matter asserted and did not fall within an exception to the

hearsay rule.

     The admission of the hearsay statements in the certificate

following the failure of the clerk to comply with the mailing

requirement of Code § 19.2-187 is reversible error.      See Woodward
v. Commonwealth, 16 Va. App. 672, 674, 432 S.E.2d 510, 512 (1993)

(stating that "[p]rejudice to the defendant from a failure to

comply [with Code § 19.2-187] need not be shown").     However,

because the reversal is for "mere trial error, and not for

evidentiary insufficiency," we will remand the case for a new

trial.   See Gray, 220 Va. at 946, 265 S.E.2d at 706; Allen, 3 Va.

App. at 664, 353 S.E.2d at 166.

     For the foregoing reasons, we reverse the conviction of

driving under the influence of alcohol in violation of Code

§ 18.2-266 and remand for further proceedings consistent with

this opinion.
                                            Reversed and remanded.




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