                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Coleman and Elder
Argued at Salem, Virginia


JOHN MASON ST. CLAIR
                                         MEMORANDUM OPINION * BY v.
     Record No. 1649-97-3            JUDGE LARRY G. ELDER
                                            NOVEMBER 24, 1998
CITY OF LYNCHBURG


         FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                   Mosby G. Perrow, III, Judge
          Leslie E. Allen, III (Harris, Allen & Yoder,
          P.C., on brief), for appellant.

          Thomas M. McKenna, Assistant Commonwealth's
          Attorney, for appellee.




     John Mason St. Clair (appellant) appeals from his bench

trial conviction for driving under the influence of alcohol,

second offense, in violation of Lynchburg Ordinance 25-162. 1

On appeal, he contends first that the trial court erred in

admitting the results of his breath test because the City failed

to prove substantial compliance with statutory requirements for

administering the breath test; the test was conducted less than

twenty minutes after appellant ingested two prescription

nitroglycerin tablets, and the City failed to prove that the

nitroglycerin did not contaminate the breath sample and skew the

breathalyzer result.   Second, he contends that the City deprived
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     1
      This ordinance tracks the language of Virginia Code
§ 18.2-266.
him of a reliable test which may have proven his innocence and

that, in the absence of such a test, the trial court erred in

failing to dismiss the prosecution.    For the reasons that follow,

we reject appellant's contentions and affirm his 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."


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)

. . . or of a similar ordinance 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



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considered valid as evidence in a prosecution under § 18.2-266

. . . or a similar ordinance, 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.   See

Snider v. Commonwealth, 26 Va. App. 729, 732, 496 S.E.2d 665, 666

(1998).

     The trial court concluded under these standards that Officer

King's administration of the breathalyzer test less than twenty

minutes after appellant ingested two sublingual nitroglycerin

tablets constituted "a violation of the procedures outlined by

the statute."   However, it also concluded that administration of

the test substantially complied with the statute and

corresponding regulations.   We cannot hold that it erred in so

ruling.



                               - 3 -
     In evaluating whether the test as administered substantially

complied with the governing regulations, the trial court was

entitled to consider testimony before it regarding the impact of

the procedures followed 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, the Commonwealth offered testimony from Peter

Marone, the Assistant Director of the Division of Forensic

Science and the official responsible for overseeing breathalyzer

test training programs and promulgating the regulations governing

operation of the machine.   Marone testified that King's failure

to comply strictly with the twenty-minute waiting period would

result in a procedurally invalid test but "[t]echnically . . .
probably [would] not" invalidate the test.   (Emphasis added).

Dr. Valentour, the Chief Forensic Toxicologist for that same

agency, the Division of Forensic Science, testified to his

familiarity with the means of operation of the Breathalyzer 900A

and the chemical properties of nitroglycerin.   Based on that

knowledge, he testified definitively that "[t]he only way that

there could be some reaction in the potassium dichromate of The

Breathalyzer is if the Nitroglycerin is actually physically

dropped into the solution" because "[i]t's not volatile in

sufficient quantities to pass by way of the breath into the

ampule [of the Breathalyzer] and cause a reaction."   Based on



                               - 4 -
this testimony, the trial court was entitled to conclude that the

procedures Officer King employed in testing appellant's breath

alcohol level substantially complied with the controlling

statutes and regulations, thereby making the test results

admissible into evidence under Code § 18.2-268.11 and permitting

the trial court, as the trier of fact, to determine what weight

to give the results after considering it in the context of all

the evidence in the case.
     Our holding in Hudson v. Commonwealth, 21 Va. App. 184, 462

S.E.2d 913 (1995), cited by appellant, does not require a

different result.   In Hudson, the record indicated that the

defendant's arm was cleaned with "benadine" before his blood was

drawn, whereas the statute required cleaning with any of three

other named solutions, which did not include benadine.    Because

the Commonwealth presented "[n]o evidence . . . as to the

chemical properties of benadine," we held that "nothing in the

record support[ed] the argument that using 'benadine'

substantially complie[d] with the statute."   Id. at 186, 462

S.E.2d at 914 (emphasis added).   In appellant's case, by

contrast, the record contains the testimony of Dr. Valentour that

appellant's ingestion of nitroglycerin during the twenty-minute

waiting period before administration of the breathalyzer had no

impact on the reliability of the test.   Although the record also

contains the contradictory testimony of Mr. McGerry, Dr.

Valentour's testimony permitted the trial court to find




                               - 5 -
substantial compliance sufficient to permit admission of the

breathalyzer results into evidence under Code § 18.2-268.11.

That code section permitted appellant to introduce evidence that

the noncompliance prejudiced his rights, which he did through the

testimony of Mr. McGerry, and required the trial court to

consider all the evidence in the case in determining whether the

noncompliance established reasonable doubt regarding appellant's

guilt. 2

      Appellant contends that the hypothetical the Commonwealth

posed to Dr. Valentour was insufficient to permit a finding that

appellant's ingestion of two nitroglycerin tablets during the

waiting period did not skew the breathalyzer results.    The

Commonwealth asked Dr. Valentour whether he had "an opinion as to

whether a sublingually taken nitroglycerin pill would be volatile

enough to have an effect on a reading from a Smith & Wesson 900-A

breathalyzer machine."    (Emphases added).   Dr. Valentour

responded that he did have an opinion--"[t]hat there would be no

effect."   In light of the evidence that appellant actually took
two nitroglycerin tablets during the twenty-minute waiting

period, we agree that Dr. Valentour's response to this

hypothetical, taken alone, would have been insufficient to prove

substantial compliance.   However, immediately preceding this

hypothetical, Dr. Valentour testified unequivocally that the only
      2
      Appellant challenges only the admissibility of the breath
test and not the sufficiency of the evidence to support his
conviction.



                                - 6 -
way sublingual nitroglycerin "could [cause a] reaction in the

potassium dichromate of The Breathalyzer is if the Nitroglycerin

is actually physically dropped into the solution."   In giving

this testimony, he did not qualify his response by indicating

that a variation in the quantity or dosage of sublingual

nitroglycerin would be a factor.

     Finally, we reject appellant's contention that Dr.

Valentour's opinion was based on speculation because he had not

conducted any experiments to support his conclusion that no

significant quantities of nitroglycerin could be carried into the

breathalyzer in appellant's breath.    Dr. Valentour, a Ph.D. in

chemistry and an expert in toxicology, testified that his

conclusions were based on his knowledge of the physical

properties of nitroglycerin.   We cannot conclude that the absence

of actual testing invalidated his opinion.   Interestingly,

appellant's expert also provided no testimony that he had

conducted any experiments on the subject and said that his

opinion, too, was based on "the physical properties of the

Nitroglycerin being soluble in the alcohol."
     Appellant also contends that, pursuant to this Court's

holding in Breeden v. Commonwealth, 15 Va. App. 148, 150, 421

S.E.2d 674, 675 (1992), he had "a right to receive the benefits

of the test," which, if properly administered, could have proven

his innocence.   The invalidity of the test due to violation of

the twenty-minute waiting period and the Commonwealth's failure




                               - 7 -
to give him a blood test when the nitroglycerin rendered him

"physically unable to submit to the breath test" deprived him of

this right, he argues.   Under the facts of this case, we hold

that Breeden is inapplicable and that appellant was not

"physically unable" to submit to the breath test within the

meaning of Code § 18.2-268.2.

     Breeden was decided under a predecessor statute, which

permitted "[a]nyone arrested for driving under the influence of

alcohol [to] 'elect to have either the blood or breath sample

taken, but not both.'"   Breeden, 15 Va. App. at 150, 421 S.E.2d

at 675 (quoting former Code § 18.2-268(C)).   Under current law,

by contrast, an arrestee must "submit to a breath test" unless

"the breath test is unavailable or the person is physically

unable to submit to the breath test."   Code § 18.2-268.2(B).

Despite this change in the statute, Officer Trent testified that

he gave appellant a choice as to which test he would take and

that appellant chose the breath test.   In addition, the breath

test was available and was, in fact, administered.   Furthermore,

the evidence does not show that appellant was physically unable

to submit to the breath test.   Officer Trent testified that

appellant did not have any physical problem blowing into the

machine, and the trial court found "no evidence that [appellant]

was ever physically unable" to take the test.   Because any

physical inability appellant had in submitting to the breath test

was constructive only, we hold that his need to use nitroglycerin



                                - 8 -
for his heart condition during the twenty-minute waiting period

did not meet the "physical inability" requirement necessitating

use of a blood test.

     For these reasons, we conclude that the trial court did not

abuse its discretion in admitting the results of the breathalyzer

test into evidence and did not err in refusing to dismiss the

prosecution.   Therefore, we affirm appellant's conviction.

                                                        Affirmed.




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