David T. Rasmussen v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Lemons
Argued at Alexandria, Virginia
DAVID T. RASMUSSEN
OPINION BY
v. 	Record No. 1239-98-4 	JUDGE ROSEMARIE ANNUNZIATA
DECEMBER 28, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Arthur B. Vieregg, Jr., Judge
David A. Oblon (Juliet D. Hiznay; Albo &
Oblon, LLP, on briefs), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
David T. Rasmussen appeals his conviction for drunk driving
(third offense within ten years), contending that the result of
a breathalyzer test administered to him following his arrest was
improperly admitted at trial. 	We find no error and affirm.
FACTS
Upon review, we view the facts in the light most favorable
to the Commonwealth, the party prevailing below. 	See Clifton v.
Commonwealth, 22 Va. App. 178, 180, 468 S.E.2d 155, 156 (1996)
(citing Higginbotham v. Commonwealth, 216 Va. 349, 352, 218
S.E.2d 534, 537 (1975)). 	On August 3, 1997, Rasmussen was
driving a motorcycle at 74 miles-per-hour on Interstate 95 just
north of Route 617 in Fairfax, Virginia, in a zone limited to 55

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miles-per-hour. 	Trooper Josh Collins of the Virginia State
Police stopped Rasmussen for speeding and detected the odor of
alcohol on his breath. 	Collins administered a series of field
sobriety tests on Rasmussen, most of which he failed. 	Collins
then arrested Rasmussen for drunk driving (third offense within
ten years), and advised him of the implied consent law, which
states, in pertinent part:
Any person . . . who operates a motor
vehicle upon a highway . . . in this
Commonwealth shall be deemed thereby, as a
condition of such operation, to have
consented to have samples of his blood,
breath, or both blood and breath taken for a
chemical test to determine the alcohol,
drug, or both alcohol and drug content of
his blood, if he is arrested for violation
of § 18.2-266 or § 18.2-266.1 . . . . 	Any
person so arrested . . . shall submit to a
breath test.
Code § 18.2-268.2(A)-(B).
After arresting Rasmussen, Collins took him to the Adult
Detention Center, where a breathalyzer test was performed on
Rasmussen using an Intoxilyzer 5000 machine ("I-5000"). 	The
machine was operated by Frederick Smith, a certified breath test
operator. 	Smith later testified that the normal operation of
the I-5000 involves having the arrestee breathe twice into the
machine, giving two separate breath samples. 	The machine prints
the lower of the blood alcohol levels produced from the two
breath samples on a Certificate of Blood Analysis
("Certificate"). 	It also transmits, via modem, the results

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obtained from both samples to the state Department of Forensic
Science in Richmond ("DFS"). 	The I-5000 determined Rasmussen's
blood alcohol level to be .14%. 	Over Rasmussen's objection, the
circuit court admitted into evidence the Certificate from the
I-5000's analysis of Rasmussen's breath. 	His objection was
based on Code §§ 18.2-268.2 and 18.2-268.9. 	By its order of
June 11, 1998, the circuit court found Rasmussen guilty and
sentenced him to twelve months in jail, with all but thirty days
suspended for one year. 	The court also imposed a $500 fine and
indefinitely suspended Rasmussen's driver's license.
ANALYSIS
Rasmussen relies upon the language of Code §§ 18.2-268.2
and 18.2-268.9 to argue that for each discrete breath sample
taken for testing by a breathalyzer, the Commonwealth is
required to give the arrestee the opportunity to view the
results as they register on the machine. 	Code § 18.2-268.2(B)
states, in pertinent part:
The accused shall, prior to administration
of the test, be advised by the person
administering the test that he has the right
to observe the process of analysis and to
see the blood-alcohol reading on the
equipment used to perform the breath test.
If the equipment automatically produces a
written printout of the breath test result,
the printout, or a copy, shall be given to
the accused.

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Code § 18.2-268.9 reads, in pertinent part:
Any individual conducting the breath test
. . . shall issue a certificate which will
indicate that . . . 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. . . .
Rasmussen contends that because the word "sample" is used
recurrently in Code § 18.2-268.9, the legislature intended to
assure the accused the right to observe the results of the
blood-alcohol analysis for each and every breath sample taken.
We disagree.
"The province of [statutory] construction lies wholly
within the domain of ambiguity, and that which is plain needs no
interpretation." 	Coleman v. Commonwealth, 27 Va. App. 768, 773,
501 S.E.2d 461, 463 (1998). 	"Words are ambiguous if they admit
to being understood in more than one way . . . refer to two or
more things simultaneously . . . are difficult to comprehend, of
doubtful import, or lack clearness and definiteness." 	Id.
(citations omitted). 	"'The plain, obvious, and rational meaning
of a statute is always to be preferred to any curious, narrow or
strained construction.'" 	Gilliam v. Commonwealth, 21 Va. App.
519, 522-23, 465 S.E.2d 592, 594 (1996) (quoting Branch v.
Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992)).
Legislative intent may also be gleaned by consulting other

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statutes "using the same phraseology," id. at 523, 465 S.E.2d at
594, and "statutes which relate to the same subject matter
should be read, construed and applied together . . . ." 	Alger
v. Commonwealth, 19 Va. App. 252, 256, 450 S.E.2d 765, 767
(1994).
"'Where a statute is unambiguous, the plain meaning is to
be accepted without resort to the rules of statutory
interpretation.'" 	Frazier v. Commonwealth, Dept. of Social
Servs., Division of Child Support Enf'ment, ex rel. Susan M.
Sandridge, 27 Va. App. 131, 134, 497 S.E.2d 879, 880 (1998)
(quoting Last v. Virginia State Bd. of Med., 14 Va. App. 906,
910, 421 S.E.2d 201, 205 (1992)). 	"When analyzing a statute, we
must assume that 'the legislature chose, with care, the words it
used when it enacted the relevant statute, and we are bound by
those words as we interpret the statute.'" 	Frazier, 27 Va. App.
at 135, 497 S.E.2d at 881 (quoting City of Virginia Beach v. ESG
Enters., Inc., 243 Va. 149, 153, 413 S.E.2d 642, 644 (1992)
(citation omitted)). 	"'"Courts are not permitted to rewrite
statutes. 	This is a legislative function. 	The manifest
intention of the legislature, clearly disclosed by its language,
must be applied."'" 	Frazier, 27 Va. App. at 135, 497 S.E.2d at
881 (quoting Barr v. Town & Country Properties, 240 Va. 292,
295, 396 S.E.2d 672, 674 (1990) (citation omitted)).

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We find no ambiguity in the statutes cited by Rasmussen and
construe the provisions according to their plain meaning. 	Each
of the statutes refers to "breath test," "sample" and "blood
alcohol reading" in the singular, and nothing in the statutes
indicates an intention to give an accused the right to
immediately view results of a breath test other than those
actually printed out by the equipment used to conduct the test.
Rasmussen also contends that the term "process of analysis"
necessarily encompasses the analysis of both samples taken and
that, therefore, he was entitled to view the results obtained
from each sample. 	However, when construed in the context of
Code § 18.2-268.2 in its entirety, we find that the term
"process of analysis" does not enlarge the scope of what
Rasmussen is entitled to review. 	A distinction must be made
between the right to see the steps undertaken to achieve a
result ("the process of analysis," such as the taking of a
sample), the operation of the testing machine and the print-out
of the test results, and the right to see the result itself.1
Here, the statute clearly limits an arrestee's right to
"see[ing] the blood alcohol reading [printed] on the equipment
used to perform the breath test." 	Code § 18.2-268.2(B).
1 Process is defined as a "method, mode, or operation,
whereby a result or effect is produced." 	Black's Law Dictionary
1205 (6th ed. 1990).

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Based on our holding in Breeden v. Commonwealth, 15
Va. App. 148, 149, 421 S.E.2d 674, 675 (1992), Rasmussen further
contends that the failure to provide him the opportunity to
review the test result of the other sample deprived him of
access to potentially exculpatory breathalyzer evidence. 	This
argument also lacks merit.
The testimony of the breathalyzer operator at trial
established that the machine was properly calibrated2 and that it
printed a test result reflecting the lower of the two sample
readings. 	Thus, the only evidence not made immediately
available to Rasmussen was evidence of an inculpatory nature.
As Rasmussen was afforded the opportunity to view the
print-out of the blood-alcohol reading taken by the breathalyzer
machine, the requirements of Code §§ 18.2-268.2 and 18.2-268.9
were met. 	For these reasons, we affirm the conviction.
Affirmed.
2 By its requirement that the operator of a breathalyzer
machine certify, inter alia, that the machine has been
calibrated in conformity with the statute, Code § 18.2-268.9
assures an accused that the machine is operating as designed.
In the case of the I-5000, the certification indicates that the
machine accurately tested the two breath samples and reported
the lower of the two sample analyses.