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Cregger v. Commonwealth6/24/1997
Argued at Salem, Virginia
FROM THE CIRCUIT COURT OF WYTHE COUNTY
J. Colin Campbell, Judge
Stephen L. Cregger (defendant) was convicted in a bench trial of driving "while having a blood alcohol content of 0.08 percent or while under the influence of alcohol" (DUI). On appeal, defendant contends that the trial court erroneously admitted a "Certificate of Breath Alcohol Analysis" (certificate) into evidence, a copy of which had not been provided to him by the attorney for the Commonwealth in accordance with Code § 19.2-187. Finding no error, we affirm the conviction.
I. FACTS
On April 8, 1995, Trooper L. F. Valley observed an automobile enter an intersection "without stopping at the stop sign," "nearly hitting" the trooper's vehicle. Upon approaching the car, Valley "detected . . . an odor of alcohol" and ascertained that defendant was the driver. Subsequent analysis of defendant's breath, reported on the disputed certificate, revealed an alcohol concentration of 0.13 grams per 210 liters of breath, a violation of Code § 18.2-266(i). A warrant charging defendant with the subject offense was thereafter obtained, returnable to the "Wythe General District Court." On August 17, 1995, defendant's counsel, pursuant to Code § 19.2-187, requested the attorney for the Commonwealth to furnish a copy of the certificate prior to defendant's trial in the general district court. The Commonwealth failed to comply, but the district court admitted the certificate into evidence over defendant's objection, resulting in conviction. Defendant appealed to the circuit court, without requesting a copy of the certificate incidental to prosecution of the offense in that forum. Nevertheless, defendant objected to introduction of the certificate into evidence during trial in the circuit court, again arguing that the Commonwealth had neglected to comply with his earlier motion in the general district court. The trial court overruled the objection, admitted the disputed certificate, and convicted defendant.
II. ANALYSIS
Code § 19.2-187 provides, inter alia, that:
"In any hearing or trial of any criminal offense or in any proceeding brought pursuant to Chapter 22.1 . . . of this title, a certificate of analysis . . . 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 of such counsel." (Emphasis added.) It is well established that "§ 19.2-187 should be construed strictly against the Commonwealth and in favor of the accused, since 'it undertakes to make admissible evidence which otherwise might be subject to a valid hearsay objection.'" Mullins v. Commonwealth, 12 Va. App. 372, 374, 404 S.E.2d 237, 238 (1991) (quoting Gray v. Commonwealth, 220 Va. 943, 945, 265 S.E.2d 705, 706 (1980)). But see Willis v. Commonwealth, 10 Va. App. 430, 441, 393 S.E.2d 405, 411 (1990) (" enal laws . . . 'ought not to be construed so strictly as to defeat the obvious intention of the legislature.'" (quoting Huddleston v. United States, 415 U.S. 814, 831 (1974))). A certificate is, therefore, inadmissible when "the Commonwealth fails strictly to comply with . . . [the statute]," including a default in providing an accused with a copy of the certificate pursuant to its provisions. Woodward v. Commonwealth, 16 Va. App. 672, 674, 432 S.E
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