                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Clements
Argued at Richmond, Virginia


JAMES M. HEGEDUS
                                          MEMORANDUM OPINION * BY
v.   Record No. 2732-00-3              JUDGE JEAN HARRISON CLEMENTS
                                             OCTOBER 30, 2001
COMMONWEALTH OF VIRGINIA


        FROM THE CIRCUIT COURT OF THE CITY OF BUENA VISTA
                  Humes J. Franklin, Jr., Judge

          H. David Natkin for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     James M. Hegedus was convicted in a bench trial of driving

under the influence of alcohol, a misdemeanor, in violation of

Code § 18.2-266.   The sole issue on appeal is whether the trial

court erred in admitting into evidence the certificate of breath

analysis where the machine used to measure the alcohol content of

Hegedus' breath had not been calibrated in strict compliance with

the regulations established by the Department of Criminal Justice

Services, Division of Forensic Science.    Finding no error, we

affirm the conviction.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
value, this opinion recites only those facts and incidents of the

proceedings as necessary to the parties' understanding of the

disposition of this appeal.

     The evidence is before us on an agreed statement of facts.

On April 3, 2000, Officer Darrell M. Slagle, of the Buena Vista

Police Department, clocked Hegedus travelling forty-three miles

per hour in a twenty-five mile-per-hour zone.   Officer Slagle

stopped Hegedus and subsequently placed him under arrest for

driving under the influence of alcohol in violation of Code

§ 18.2-266.

     Thereafter, Officer Slagle administered a breath-analysis

test to Hegedus using the Intoxilyzer 5000 machine.   The officer

conducted the test in accordance with the training he had received

for the Intoxilyzer 5000 machine.   Pursuant to that training, the

validation test of the machine was performed before, rather than

after, Hegedus gave a sample of his breath.   Upon completion of

the breath-analysis test, the machine showed that Hegedus had a

blood alcohol content of ".09 grams per 210 liters of breath."

     The only issue before us on appeal is Hegedus' claim that the

trial court erred in admitting the certificate of breath analysis

into evidence because, although the subject breath test was

performed in accordance with the officer's training for the

Intoxilyzer 5000, the test was not conducted in strict compliance




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with administrative regulation 1 VAC 30-50-90(C),1 which required

that the validation test of the machine be performed immediately

after, rather than before, the breath sample is given.

     We addressed the same issue in Rollins v. Commonwealth, ___

Va. App. ___, ___ S.E.2d ___ (2001), decided this day.   In that

case, Rollins argued, like Hegedus, that the operator's failure to

conduct the validation test of the Intoxilyzer 5000 machine

immediately after the breath analysis, as specifically required by

1 VAC 30-50-90(C), rendered the certificate of breath analysis

inadmissible.   We held, however, that, because the breath-test

methods set forth by the Department of Criminal Justice Services,

Division of Forensic Science in 1 VAC 30-50-90 were procedural,

rather than substantive, in nature, substantial, rather than

strict, compliance with those methods was sufficient.    Id. at

___, ___ S.E.2d at ___.   We further concluded that the trial court

properly admitted the certificate of breath analysis into

evidence, because the Intoxilyzer 5000 machine operator in that

case, "having administered the breath-analysis test to Rollins in

accordance with 1 VAC 30-50-90(A), substantially complied with the

breath-test methods approved by the Department of Criminal Justice

Services, Division of Forensic Science."   Id. at   ___, ___ S.E.2d

at ___.




     1
       Although applicable to this case, 1 VAC 30-50-90 has since
been amended and renumbered as 6 VAC 20-190-110(3).

                               - 3 -
        The same reasoning and conclusions are equally applicable

here.    Thus, for the reasons more particularly stated in Rollins,

we affirm Hegedus' conviction.

                                                           Affirmed.




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