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ST. clair v. City of Lynchburg11/24/1998
MEMORANDUM OPINION *fn*
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Mosby G. Perrow, III, Judge
John Mason St. Clair (appellant) appeals from his bench trial conviction for driving under the influence of alcohol, second offense, in violation of Lynchburg Ordinance 25-162.
On appeal, he contends first that the trial court erred in admitting the results of his breath test because the City failed to prove substantial compliance with statutory requirements for administering the breath test; the test was conducted less than twenty minutes after appellant ingested two prescription nitroglycerin tablets, and the City failed to prove that the nitroglycerin did not contaminate the breath sample and skew the breathalyzer result. Second, he contends that the City deprived him of a reliable test which may have proven his innocence and that, in the absence of such a test, the trial court erred in failing to dismiss the prosecution. For the reasons that follow, we reject appellant's contentions and affirm his conviction.
"'The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion.'" James v. Commonwealth, 18 Va. App. 746, 753, 446 S.E.2d 900, 904 (1994) (quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988) (citation omitted)). Ordinarily,
he measure of the burden of proof with respect to factual questions underlying the admissibility of evidence is proof by a preponderance of the evidence. . . . In determining whether the Commonwealth has met its burden, the trial court, acting as a fact finder, must evaluate the credibility of the witnesses, resolve the conflicts in their testimony and weigh the evidence as a whole. Its factual finding "is to be given the same weight by the appellate court as is accorded the finding of fact by a jury."
Albert v. Commonwealth, 2 Va. App. 734, 738, 347 S.E.2d 534, 536 (1986) (quoting Witt v. Commonwealth, 215 Va. 670, 674, 212 S.E.2d 293, 296-97 (1975) (citations and footnote omitted)).
Code § 18.2-268.2 provides, in relevant part, that " ny person . . . arrested for a violation of § 18.2-266(i) or (ii) . . . or of a similar ordinance shall submit to a breath test. If the breath test is unavailable or the person is physically unable to submit to the breath test, a blood test shall be given." Under Code § 18.2-268.9, " o be capable of being considered valid as evidence in a prosecution under § 18.2-266 . . . or a similar ordinance, chemical analysis of a person's breath shall be performed . . . in accordance with methods approved by the Department of Criminal Justice Services, Division of Forensic Science." The code also provides, however, that
he 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 . . . 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.
Code § 18.2-268.11. The Commonwealth bears the burden of proving substantial compliance with the statutes' requirements. See Snider v. Commonwealth, 26 Va. App. 729, 732, 496 S.E.2d 665, 666 (1998).
The trial court concluded under these standa
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