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Kauffman v. Commonwealth6/20/2000
MEMORANDUM OPINION
FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS William R. Shelton, Judge
The trial judge convicted William Lee Kauffman of driving a motor vehicle while under the influence of alcohol in violation of Code § 18.2-266. Kauffman contends he was denied the opportunity to observe the process of analysis and see the blood-alcohol reading as required by Code § 18.2-268.2(B). Therefore, he argues the trial judge erred in refusing to suppress the certificate of analysis of his blood alcohol level. For the reasons that follow, we affirm the conviction.
I.
On July 19, 1997, at 3:13 a.m., a police officer in the City of Colonial Heights saw a motor vehicle swerving numerous times outside the markers of the lane in which it was travelling. He stopped the vehicle and requested a driver's license and vehicle registration from the driver, William Kauffman. After the officer noticed that Kauffman's eyes were bloodshot and that Kauffman had a smell of alcohol about his person, he questioned Kauffman about his alcohol consumption. Kauffman said he had drunk two or three glasses of wine and two to three beers, consuming the last drink about thirty minutes before the officer stopped him. After Kauffman was unsuccessful in performing several dexterity tests, the officer arrested him.
At the police station, the officer advised Kauffman of his obligation to take a blood or breath test pursuant to Virginia's implied consent law. When Kauffman elected to take a breath test, the officer tested the blood alcohol content of Kauffman's breath using the Intoxilyzer 5000 machine, Series 768VA.
Prior to trial, Kauffman moved to suppress the certificate of analysis of the blood alcohol test. Kauffman argued that the certificate should be suppressed because he was not provided the opportunity to see either the test results of all breath samples or the entire analysis as required under Code §§ 18.2-268.2 and 18.2-269.9.
At the suppression hearing, Robert Masolf of the Division of Forensic Science testified that the Intoxilyzer 5000 takes an "air blank" to check the surrounding air, prior to testing a person's breath. After that check, the machine runs a simulator sample with a wet bath simulator that must meet certain tolerances and then runs another "air blank" to clear the chamber. When the person blows through the breath tube to the chamber, the machine analyzes the person's breath for alcohol and stores the results into memory. The machine then runs another "air blank" to clear the chamber, waits two minutes, and then asks for another sample. When the person breathes into the machine a second time, it calculates the alcohol content of the second sample and compares it with the alcohol content of the first sample. If the two samples are within .02 of each other, the machine takes the lower of the two samples and presents it as the final result. That result is displayed on the machine and printed on a certificate.
On a weekly basis, the Division of Forensic Science downloads the testing results from each machine via a modem connected to the Division's offices in Richmond and obtains readings of both comparison samples from each machine. The Division then reviews the results of all tests conducted by each machine for quality control and to "troubleshoot" any operational problems. Masolf testified that the accused may obtain the higher of the two samples by request from the Division. After hearing this evidence, the trial judge requested counsel to brief their arguments and took the motion under advisement.
At trial, Kauffman entered a plea of not guilty. The certificate of analysis, which indicated th
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