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Cephas v. Commonwealth3/4/2003
Argued at Alexandria, Virginia
MEMORANDUM OPINION
In a bench trial, the trial court convicted Bradford W. Cephas, Jr. (appellant) of driving under the influence (DUI) (third offense) and driving after having been declared an habitual offender (second offense). Appellant contends that the trial court erred in admitting the breath test certificate of analysis. For the reasons that follow, we affirm.
I.
On the evening of February 10, 2001 Sergeant George Southard (Southard) of the Warrenton Police Department arrested appellant for DUI. Southard took appellant to the magistrate's office, where appellant elected to take a breath test that reflected a blood alcohol content of 0.15.
A certificate of analysis (certificate) for the breath test was filed in the general district court prior to appellant's preliminary hearing. The general district court certified appellant to the circuit court grand jury on April 12, 2001 and ordered that all the original papers in the case be forwarded to the Clerk of the Circuit Court. This order was stamped "filed" in the circuit court on April 13, 2001. None of the other papers forwarded to the circuit court were stamped "filed" in the circuit court. Appellant was tried in a bench trial on August 16, 2001. At trial, appellant objected to admission of the certificate of analysis on the basis that the Commonwealth failed to file the certificate in the circuit court seven days prior to trial as required by Code § 19.2-187.
The trial court, after reviewing the court file, overruled appellant's objection, finding that the certificate was "filed" along with all of the papers from the district court with the Clerk of the Circuit Court on April 13, 2001. Appellant was convicted of DUI (third offense) and driving after having been declared an habitual offender (second offense).
II.
Appellant contends that the trial court erred in admitting the certificate of analysis into evidence because the Commonwealth did not prove the certificate was filed seven days prior to trial with the Clerk of the Circuit Court as required by Code § 19.2-187. The record shows otherwise.
"Generally, a court has discretion to determine whether evidence is admissible." Waller v. Commonwealth, 27 Va. App. 71, 74, 497 S.E.2d 508, 509 (1998). Nevertheless, " certificate of analysis is not admissible if the Commonwealth fails strictly to comply with the provisions of Code § 19.2-187." Woodward v. Commonwealth, 16 Va. App. 672, 674, 432 S.E.2d 510, 512 (1993). Code § 19.2-187 provides:
In any hearing or trial of any criminal offense . . . a certificate of analysis of a person performing an analysis or examination, performed in any laboratory operated by the Division of Consolidated Laboratory Services or the Division of Forensic Science or authorized by such Division to conduct such analysis or examination, . . . when such certificate is duly attested by such person, shall be admissible in evidence as evidence of the facts therein stated and the results of the analysis or examination referred to therein, provided (i) the certificate of analysis is filed with the clerk of the court hearing the case at least seven days prior to the hearing or trial and (ii) a copy of such certificate is mailed or delivered by the clerk or attorney for the Commonwealth to counsel of record for the accused at least seven days prior to the hearing or trial upon request made by such counsel to the clerk with notice of the request to the attorney for the Commonwealth.
"The purpose of the [statute] is plain. It is to ensure that the certificate to be used in evidence is lodged timely in a secure a
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