Virginia Beach DUI Attorney – Norfolk DUI Lawyer : § 18.2-268.9. Assurance of breath-test validity; use of breath-test results as evidence.

A. To be capable of being considered valid as evidence in a prosecution under § 18.2-266, 18.2-266.1, or subsection B of § 18.2-272, or a similar ordinance, chemical analysis of a person’s breath shall be performed by an individual possessing a valid license to conduct such tests, with a type of equipment and in accordance with methods approved by the Department.

B. The Department shall establish a training program for all individuals who are to administer the breath tests. Upon a person’s successful completion of the training program, the Department may license him to conduct breath-test analyses. Such license shall identify the specific types of breath test equipment upon which the individual has successfully completed training. Any individual conducting a breath test under the provisions of § 18.2-268.2 shall issue a certificate which will indicate that the test was conducted in accordance with the Department’s specifications, the name of the accused, that prior to administration of the test the accused was advised of his right to observe the process and see the blood alcohol reading on the equipment used to perform the breath test, the date and time the sample was taken from the accused, the sample’s alcohol content, and the name of the person who examined the sample. This certificate, when attested by the individual conducting the breath test on equipment maintained by the Department, shall be admissible in any court as evidence of the facts therein stated and of the results of such analysis (i) in any criminal proceeding, provided that the requirements of subsection A of § 19.2-187.1 have been satisfied and the accused has not objected to the admission of the certificate pursuant to subsection B of § 19.2-187.1, or (ii) in any civil proceeding. Any such certificate of analysis purporting to be signed by a person authorized by the Department shall be admissible in evidence without proof of seal or signature of the person whose name is signed to it. A copy of the certificate shall be promptly delivered to the accused. Copies of Department records relating to any breath test conducted pursuant to this section shall be admissible provided such copies are authenticated as true copies either by the custodian thereof or by the person to whom the custodian reports.

The officer making the arrest, or anyone with him at the time of the arrest, or anyone participating in the arrest of the accused, if otherwise qualified to conduct such test as provided by this section, may administer the breath test and analyze the results.

OPPORTUNITY TO VIEW READ OUT FROM BREATHALYZER MACHINE SATISFIES REQUIREMENTS. –Giving defendant an opportunity to view the print out of the blood-alcohol reading taken by the breathalyzer machine satisfied the requirements of this section; moreover, the appeals court agreed with the trial judge that since the breath test procedure did not contemplate defendant having his breath sample analyzed by an independent party, then the fact that he was shown the result, but not actually given a paper copy of the result, could hardly have had any effect on his substantive rights at trial. Shelton v. Commonwealth, 45 Va. App. 175, 609 S.E.2d 89, 2005 Va. App. LEXIS 78 (2005).

GUILT OR INNOCENCE DETERMINED FROM ALL EVIDENCE OF DEFENDANT’S CONDITION. –The statutory mandate is that the guilt or innocence of the accused be determined from all the evidence of his condition at the time of the alleged offense, with or without a breath analysis. Brooks v. City of Newport News, 224 Va. 311, 295 S.E.2d 801 (1982) (decided under former § 18.2-268).