                   COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Benton and Bray
Argued at Richmond, Virginia


LESTER LYNN LEONARD
                                        MEMORANDUM OPINION *
v.        Record No. 2089-96-2       BY JUDGE JOSEPH E. BAKER
                                           JUNE 3, 1997
COUNTY OF SPOTSYLVANIA


          FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
                 William H. Ledbetter, Jr., Judge
          Carroll E. Smith for appellant.

          John C. Bowers (William F. Neely,
          Commonwealth's Attorney, on brief), for
          appellee.



     Lester Lynn Leonard (appellant) appeals from his bench trial

conviction by the Circuit Court of Spotsylvania County for

driving under the influence of alcohol in violation of County

Ordinance § 12-86, which parallels Virginia Code § 18.2-266.    The

sole issue presented by this appeal is whether the trial court

erred when it denied appellant's motion to suppress the

certificate of blood alcohol analysis tendered by the
               1
prosecution.
     Appellant and Corporal T.G. Benton of the Spotsylvania
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     1
      In appellant's petition for appeal, he raised only this
issue. In his brief, appellant raises additional issues. Rule
5A:12(c) provides that "only questions presented in the petition
for appeal will be noticed by the Court of Appeals." See Cruz v.
Commonwealth, 12 Va. App. 661, 664, n.1, 406 S.E.2d 406, 407 n.1
(1991). We did not grant appellant an appeal on the additional
issues raised in his brief and will not address them.
County Sheriff's Department gave conflicting statements on the

issue appellant deemed relevant.    Appellant asserts that he

consented to take a breath test as provided in Code § 18.2-268.2

and was taken to the County Sheriff's office where a breathalyzer

was usually available.    However, it was determined that the

breathalyzer was malfunctioning, and a valid test could not be

administered.    Appellant testified that he was then transported

to a magistrate where Benton obtained an arrest warrant.
        Corporal Benton confirmed that the breathalyzer in the

sheriff's office was malfunctioning but declared that, to the

best of his recollection, he then took appellant to the

Fredericksburg police station where he administered an accurate

test which revealed appellant's blood alcohol concentration of

0.11.    He testified further that he then appeared before the

magistrate and obtained the arrest warrant.    However, the arrest

warrant contains a "time issued" of 12:34 a.m., and the

certificate of analysis discloses a "time sample taken" of 1:08

a.m.    Notwithstanding this discrepancy, Benton insisted that, to

the best of his recollection, the warrant was not obtained until

after the breath test was administered.

        In reviewing a trial court's denial of a motion to suppress,

"[t]he burden is upon [the appellant] to show that this ruling,

when the evidence is considered most favorably to the

Commonwealth, constituted reversible error."     Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980).       We




                                 - 2 -
"review findings of historical fact only for clear error and

. . . give due weight to inferences drawn from those facts by

resident judges and local law enforcement officers."       Ornelas v.

United States, 116 S. Ct. 1657, 1663 (1996).

     The record supports the trial court's conclusion that Benton

administered the test before he obtained the warrant.      The trial

court obviously accepted Benton's account of the events and

observed that the arrest warrant showed it was executed at
1:25 a.m.   We find no error in the ruling.

     Moreover, we review de novo the ultimate questions of

reasonable suspicion and probable cause.      See id.   Viewed

accordingly, the record discloses that Benton stopped appellant

after observing appellant weaving his car across the center line.

Appellant had a strong odor of alcohol about his breath and

performed poorly on several field sobriety tests.       While

appellant initially denied that he had been drinking, he

subsequently admitted he had "a couple of beers."       Upon further

questioning, appellant angrily stated that he had consumed twelve

beers and three Jim Beam and cokes and admitted being drunk.

     Even if we were to accept appellant's assertion that the

warrant was issued prior to the breathalyzer test, he has

suffered no harm.   Where an officer has probable cause to obtain

an arrest warrant for driving under the influence, there is no

legal requirement that the officer administer a breathalyzer test

before obtaining the arrest warrant.   The record supports that



                               - 3 -
the arresting officer had probable cause to procure the arrest

warrant even before administering the test.

     Accordingly, the judgment of the trial court is affirmed.

                                                        Affirmed.




                              - 4 -
