A. To be capable of being considered valid as evidence in a prosecution under § 18.2-266 or 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.
Any person qualified to conduct a breath test as provided by this section may administer the breath test or analyze the results.
1992, c. 830; 1994, cc. 359, 363; 1996, cc. 154, 952; 1997, c. 256; 1999, c. 273; 2004, c. 1013; 2005, cc. 757, 840, 868, 881; 2006, c. 101; 2009, Sp. Sess. I, cc. 1, 4; 2017, c. 623.
Notes of Decisions
Roseborough v. Commonwealth, 688 S.E.2d 882 (Va. Ct. App. 2010).
· cites it 104× “Appellant did not argue that the certificate failed to meet any of the evidentiary requirements found in Code § 18.2-268.9 for admission of a certificate of analysis nor did he make any argument regarding hearsay or other rules of evidence.”
Luginbyhl v. Commonwealth, 628 S.E.2d 74 (Va. Ct. App. 2006).
· cites it 16× “Over objection, the trial court admitted the analysis and certificate pursuant to Code § 18.2-268.9. [2] The trial court convicted appellant of driving while intoxicated in violation of Code § 18.”
Luginbyhl v. Commonwealth, 618 S.E.2d 347 (Va. Ct. App. 2005).
· cites it 22× “See Code § 18.2-268.9 (providing, in pertinent part, that a certificate of breath analysis "shall be admissible as evidence of the facts therein stated and of the results of such analysis" provided the "individual" conducting the breath test attests, inter alia, "that the test…”
Reynolds v. Commonwealth, 515 S.E.2d 808 (Va. Ct. App. 1999).
· cites it 21× “Appellant filed a pretrial motion to dismiss the DUI charge, arguing that the results of the breath test were inadmissible because Officer Woodring did not meet the statutory training requirements of Code § 18.2-268.9. Officer Woodring was initially licensed by the Division of…”
Rollins v. Commonwealth, 554 S.E.2d 99 (Va. Ct. App. 2001).
· cites it 8× “At trial, the Commonwealth offered the certificate of breath analysis for admission into evidence under Code § 18.2-268.9. Rollins objected to its admission, arguing that the Intoxilyzer 5000 machine used to perform the breath-analysis test had not been properly calibrated in…”
Jeremy Deshawn Fitzgerald v. Commonwealth of Virginia, 734 S.E.2d 708 (Va. Ct. App. 2012).
· cites it 18× “Fitzgerald argues that Code § 18.2-268.9 requires the Commonwealth to introduce evidence affirmatively showing that the equipment used to conduct a defendant’s breath test was maintained by the Department of Forensic Science (the “Department”) and that the Commonwealth’s failure…”
Lemond v. Commonwealth, 454 S.E.2d 31 (Va. Ct. App. 1995).
· cites it 16× “On appeal, she contends: (1) that the trial court erred in failing to suppress her breath test results from the Intoximeter 3000 because it did not perform a "chemical analysis" as required by Code § 18.2-268.9; (2) that the trial court erred in granting a jury instruction…”
Grant v. Commonwealth, 682 S.E.2d 84 (Va. Ct. App. 2009).
· cites it 12× “Code § 18.2-268.9. Grant argues that this attestation clause is testimonial and that the trial court’s failure to subject the preparer of the clause to cross-examination rendered the certificate inadmissible.”
Woolridge v. Commonwealth, 512 S.E.2d 153 (Va. Ct. App. 1999).
· cites it 9× “tutory requirements because the machine printed a random number on the certificate in the middle of the testing official’s name and the testing official, Officer Schultz, could not confirm, based on personal knowledge, that the breathalyzer machine was functioning properly…”
Anderson v. Commonwealth, 486 S.E.2d 115 (Va. Ct. App. 1997).
· cites it 24× “Code § 18.2-268.9 [1] requires that the breath analysis certificate indicate, inter alia, that "the equipment on which the breath test was conducted has been tested within the past six months and has been found to be accurate.”
James v. Commonwealth, 446 S.E.2d 900 (Va. Ct. App. 1994).
· cites it 6× “See Code § 18.2-268.9. We disagree. “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.”
Rasmussen v. Commonwealth, 522 S.E.2d 401 (Va. Ct. App. 1999).
· cites it 6× “Code § 18.2-268.9 reads, in pertinent part: Any individual conducting the breath test .”
— Va. Code Ann. § 18.2-268.9(A) — 3 cases
Jeremy Deshawn Fitzgerald v. Commonwealth of Virginia, 734 S.E.2d 708 (Va. Ct. App. 2012).
“Fitzgerald argues that Code § 18.2-268.9 requires the Commonwealth to introduce evidence affirmatively showing that the equipment used to conduct a defendant’s breath test was maintained by the Department of Forensic Science (the “Department”) and that the Commonwealth’s failure…”
— Va. Code Ann. § 18.2-268.9(A)(ii) — 1 case
— Va. Code Ann. § 18.2-268.9(B) — 4 cases
Jeremy Deshawn Fitzgerald v. Commonwealth of Virginia, 734 S.E.2d 708 (Va. Ct. App. 2012).
“Fitzgerald argues that Code § 18.2-268.9 requires the Commonwealth to introduce evidence affirmatively showing that the equipment used to conduct a defendant’s breath test was maintained by the Department of Forensic Science (the “Department”) and that the Commonwealth’s failure…”
— Va. Code Ann. § 18.2-268.9(B)(i) — 1 case
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