                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Fitzpatrick
Argued at Richmond, Virginia


WILLIE ALBERT PRICE
                                          MEMORANDUM OPINION * BY
v.   Record No. 0460-95-2              JUDGE JAMES W. BENTON, JR.
                                               MAY 28, 1996
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
                 Charles L. McCormick, III, Judge
           Roxie O. Rosemond for appellant.

           Leah A. Darron, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           brief), for appellee.



      Willie Albert Price appeals from a conviction of driving

under the influence of alcohol in violation of Code

§ 18.2-266(ii).   He contends that the trial judge erred in

admitting a certificate of breath analysis and a deputy sheriff's

testimony regarding the test procedure.   For the reasons that

follow, we conclude that the trial judge did not err.

                                I.

      Shortly before 11:30 p.m., several deputy sheriffs saw Price

drive through an intersection after failing to heed a stop sign.

 Before stopping Price, they observed him driving on the wrong

side of the road and weaving across the travel lanes.     After

Price stopped and exited his vehicle, he walked unsteadily.       The

deputies arrested Price for driving under the influence of
      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
alcohol.   Price elected to take a breathalyzer test.

     Over objection of Price's counsel, Deputy Sheriff Todd

Gordon testified at trial that he administered the breath test

and took notes throughout the procedure.   He testified that he

started the test with an observation period at 11:45 p.m.,

prepared and tested the machine, and gave Price the breath test

at 12:08 a.m.   The machine recorded Price's blood alcohol content

as .10.
     The deputy sheriff also testified that he prepared the

certificate of analysis, gave a copy to Price, and then took

Price to a jail cell.   Approximately twenty-five minutes after

completing the certificate, the deputy sheriff realized that he

failed to indicate on the certificate the time of the test.

After ascertaining from his notes the time that he conducted the

test, the deputy sheriff entered the time on the copies of the

certificate he retained.   He did not notify Price of the omission

or enter the time of the test on Price's copy.

     Price's counsel objected to the introduction of the

certificate in evidence because the time had not been completed

on Price's copy of the certificate.    His counsel also objected to

the introduction of the deputy sheriff's notes.   The trial judge

admitted both as evidence.   At the conclusion of all the

evidence, the trial judge found the evidence sufficient to prove

beyond a reasonable doubt that Price drove under the influence of

alcohol in violation of Code § 18.2-266(ii).




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                                  II.

     "Evidence that tends to establish a fact at issue is

relevant and material and, therefore, admissible, if its

probative value is not outweighed by any prejudicial effect."

Wilkins v. Commonwealth, 18 Va. App. 293, 297, 443 S.E.2d 440,

443 (1994).    The trial judge must balance the competing

considerations.     Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d

820, 823 (1986).    The deputy sheriff's testimony proved the

circumstances surrounding the test and tended to resolve a

disputed issue concerning the certificate of analysis.      Thus, the

testimony was relevant and material.     Furthermore, based upon the

evidence in the record, the probative value of the testimony

outweighed any incidental prejudice to Price.    Therefore, the

trial judge did not err in admitting the deputy sheriff's

testimony.
     Code § 18.2-268.9 creates an exception to the hearsay rule

and permits a certificate of breath analysis to be admitted in

evidence.     In pertinent part, the statute states as follows:
                Any individual conducting a breath test
             under the provisions of § 18.2-268.2 shall
             issue a certificate which will indicate that
             the test was conducted in accordance with the
             Division's specifications, the equipment on
             which the breath test was conducted has been
             tested within the past six months and has
             been found to be accurate, the name of the
             accused, that prior to administration of the
             test the accused was advised of his right to
             observe the process and see the blood alcohol
             reading on the equipment used to perform the
             breath test, the date and time the sample was
             taken from the accused, the sample's alcohol
             content, and the name of the person who


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          examined the sample. This certificate, when
          attested by the individual conducting the
          breath test, shall be admissible in any court
          in any criminal or civil proceeding as
          evidence of the facts therein stated and of
          the results of such analysis. Any such
          certificate of analysis purporting to be
          signed by a person authorized by the Division
          shall be admissible in evidence without proof
          of seal or signature of the person whose name
          is signed to it. A copy of the certificate
          shall be promptly delivered to the accused.


Code § 18.2-268.9.

     In addition, Code § 18.2-268.11 provides as follows:
          The 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, or a variance in the results of the
          two blood tests 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

(Emphasis added).


     Through testimony of the deputy sheriff, the Commonwealth

sought to explain an omission on the certificate.   Although the

certificate that the deputy sheriff gave to Price did not specify

the time Price took the test, the deputy sheriff testified as to

the time and the events that occurred during and after the test.

His testimony proved that the notes he made contemporaneously

with the test contained the time the breath sample was taken.



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This evidence proved substantial compliance with the requirements

of Code § 18.2-268.9.

     Furthermore, the omission and the deputy sheriff's

explanation "go to the weight of the evidence and shall be

considered with all the evidence in the case."   Code

§ 18.2-268.11; Artis v. City of Suffolk, 19 Va. App. 168, 171,

450 S.E.2d 165, 167 (1994).   No evidence tended to prove that

Price suffered prejudice as a result of the omission of the time

on his copy of the certificate.   Accordingly, we hold that the

trial judge did not err in admitting the certificate of analysis

and the deputy sheriff's notes, and we affirm the judgment order.
                                                  Affirmed.




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