                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Fitzpatrick and Annunziata
Argued at Alexandria, Virginia


STEPHEN CLYDE MOTTERN
                                         MEMORANDUM OPINION * BY
v.         Record No. 1691-95-4        JUDGE ROSEMARIE ANNUNZIATA
                                            OCTOBER 29, 1996
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                  Benjamin N. A. Kendrick, Judge
           Tracy A. Thompson (Powell & Thompson, P.C.,
           on brief), for appellant.

           John H. McLees, Jr., Assistant Attorney
           General (James S. Gilmore, III, Attorney
           General, on brief), for appellee.


     Following a bench trial, appellant, Stephen Clyde Mottern,

was convicted of driving while intoxicated.     Appellant contends

the trial court erred in denying his request for a continuance to

secure the presence of two individuals who witnessed his arrest.

 We disagree and affirm.

                                  I.

     On the early morning of July 6, 1994, appellant was arrested

for driving while having a blood alcohol concentration in excess

of .08 percent.   Michelle and J. R. Thornton accompanied

appellant at the time.   The Thorntons were stationed in Germany

with the United States Air Force and were on leave in the United

States.   On July 13, 1994 appellant requested an expedited trial

to ensure the presence of his witnesses, the Thorntons.     Trial
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
was set for July 19, 1994, at which time appellant and his two

witnesses appeared.   The Commonwealth, however, requested a

continuance to cure a defect in the breath certificate.    The

motion was denied, and the Commonwealth requested a nolle

prosequi.    Appellant was re-arrested and a new trial date was set

for August 3, 1994.   Appellant filed a motion to dismiss on the

ground that the Thorntons had returned to Germany for an

indeterminate amount of time.    The court entered another nolle
  prosequi.    On September 19, 1994, appellant was directly

indicted for the same offense.    Appellant filed another motion to

dismiss, in which appellant states
          [t]he Thorntons were able to provide material
          testimony relative to [appellant's]
          appearance and demeanor, as well as his
          performance of field tests. They also would
          have been able to present material testimony
          contradicting the officers' version of events
          regarding the stop itself.


Appellant relies on this statement as his proffer to the trial

court of the Thorntons' expected testimony.   The court denied

appellant's motion to dismiss, but it granted a continuance upon

appellant's suggestion that the court select a day in July 1995

for trial.    Trial was then set for July 10, 1995.   On July 5,

1995, appellant requested another continuance on the ground that

the Thorntons would not return to the United States until later

that year.    Appellant stated he was uncertain when the Thorntons

would return but that the earliest date would be December 1995 or

January 1996, when their tour of duty was completed.    He stated



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the Thorntons would know their return date by September 1995, and

he requested a continuance until January 1996.    The trial court

denied appellant's motion for a continuance, and trial was

conducted July 10, 1995.

       At trial, Officer Clagett testified that he observed

appellant stop his vehicle in a lane reserved for taxicabs at

Washington National Airport.   When Clagett honked his horn to get

appellant's attention to ask him to move, appellant yelled a

profanity at the officer.   Clagett approached appellant and

directed him to pull over and stop his vehicle.   He then

requested that appellant produce his driver's license and remain

in his vehicle.   Appellant exited his vehicle, and Clagett again

instructed him to remain inside.   Clagett attempted to write a

traffic summons for appellant, but appellant exited his vehicle

twice more and approached the officer, shouting profanities at

him.   Clagett called for backup, and Officer Lowery responded.

Clagett then began to place appellant under arrest for

obstructing a law enforcement officer.   As he placed handcuffs on

appellant, Clagett noticed that appellant smelled of alcohol.

Clagett had not detected the odor of alcohol during his initial

contact with appellant.
       Officer Lowery testified that appellant smelled of alcohol

and that his eyes were bloodshot and his speech slow and slurred.

Lowery conducted field sobriety tests, and appellant took an

alco-sensor test.   Lowery testified that appellant had no




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difficulty communicating and that he did nothing to impede the

administration of the breath test.      Following the tests, Clagett

arrested appellant for driving while intoxicated and transported

him to Arlington County Detention Center where a breath test was

administered by Officer Rodriguez.      Following the testimony of

both Officers Clagett and Lowery, appellant attempted to proffer

the Thorntons' expected testimony.      The court, however, sustained

the Commonwealth's objection that the proffered testimony was

hearsay.
       The breath certificate was not admitted into evidence at

trial, but Rodriguez testified regarding the results of the

breath test, which indicated .10 grams per 210 liters of breath.

Appellant objected to Rodriquez's testimony on the grounds that

the "Attest" portion of the breath certificate lacked a date and

that the test was administered in excess of two hours after

appellant had operated a motor vehicle.     The court denied

appellant's objections.

       Appellant argued a motion to strike the Commonwealth's

evidence on the grounds that the police officers had no probable

cause or reasonable suspicion to believe appellant was under the

influence of alcohol and that the breath test had been

administered too late.    The court denied appellant's motion.

Appellant presented no evidence, and the trial court convicted

him.

                                 II.




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     The decision whether to grant a continuance is committed to

the sound discretion of the trial court.    E.g., Gray v.

Commonwealth, 16 Va. App. 513, 516, 431 S.E.2d 86, 88 (1993).

"Where the proponent of a continuance fails to indicate that a

missing witness is material, there is no abuse of discretion in

denying the continuance."    Id. at 518, 431 S.E.2d at 89; see also

Shifflett v. Commonwealth, 218 Va. 25, 30, 235 S.E.2d 316, 319-20

(1977); Lacks v. Commonwealth, 182 Va. 318, 323-24, 28 S.E.2d

713, 716 (1944).
     Code § 18.2-266(i) prohibits driving while the driver has a

blood alcohol concentration (BAC) of .08 percent or more as

indicated by a chemical test administered pursuant to the

statute.   Code § 18.2-268.2(B) provides that any person arrested

for a violation of Code § 18.2-266(i) shall submit to a breath

test, the results of which are documented in a certificate issued

pursuant to Code § 18.2-268.9.    The issue under Code

§ 18.2-266(i) is "not whether a driver was in fact `under the

influence of alcohol' to a degree that his ability to drive

safely was affected; rather, the issue is whether at the time he
was driving his [BAC] was at least [.08] percent."       Davis v.

Commonwealth, 8 Va. App. 291, 298, 381 S.E.2d 11, 15 (1989);

Lemond v. Commonwealth, 19 Va. App. 687, 693, 454 S.E.2d 31, 35

(1995).    The effect of Code § 18.2-266(i) is to create a

rebuttable presumption "that the [BAC] while driving was the same

as indicated by the results of the subsequent test."       Davis, 8




                                 - 5 -
Va. App. at 300, 381 S.E.2d at 16; Lemond, 19 Va. App. at 693,

454 S.E.2d at 35.    The presumption may be rebutted where, for

example, the evidence shows that the accused consumed alcohol

since driving or that the accused had not consumed enough alcohol

in the relevant time to have reached the level indicated by the

test results at the time he was driving.      See Davis, 8 Va. App.

at 300, 381 S.E.2d at 16; Lemond, 19 Va. App. at 694, 454 S.E.2d

at 35; Kehl v. Commonwealth, 15 Va. App. 602, 606, 426 S.E.2d

127, 129-30 (1993).
     In the present case, appellant was convicted upon evidence

that his BAC exceeded .08 percent.      Although the breath

certificate was not admitted into evidence, Officer Rodriquez

testified that the results of the breath test showed appellant's

BAC was .10 percent.   Appellant objected to Rodriquez's testimony

on the grounds that the certificate was facially defective and

that the test was conducted too late.     The court overruled

appellant's objections, and appellant does not challenge these

rulings on appeal.    Accordingly, we consider the testimony of

Officer Rodriquez properly admitted under the law of this case.

     We assume, without deciding, that appellant's proffer of the

Thorntons' expected testimony was sufficient to provide a "basis

for adjudication" of the issue before us.      See Whittaker v.

Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81 (1977).       It is

clear that appellant expected the Thorntons to testify concerning

the events surrounding the stop, appellant's appearance and



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demeanor at the time of the stop, and appellant's performance on

the field sobriety tests.   Contrary to appellant's contention,

however, it is equally clear that such testimony would in no way

rebut the presumption that appellant's BAC, as determined by the

breath test, exceeded .08 percent at the time he was driving.

See, e.g., Davis, 8 Va. App. at 300, 381 S.E.2d at 16 (whether

accused under the influence of alcohol not at issue in

prosecution under Code § 18.2-266(i)).
     In light of the admission of the test results through the

testimony of Officer Rodriquez, the proffered testimony was not

material to the case at bar.   Thus, we find no error in the trial

court's denial of appellant's motion for a continuance.

     Accordingly, we affirm appellant's conviction.

                                                          Affirmed.




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