Rafael J. Tal v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Bray and Fitzpatrick
Argued at Alexandria, Virginia
RAFAEL J. TAL
v. 	Record No. 2166-93-4 	MEMORANDUM OPINION* BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA 	MAY 2, 1995
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
James W. Haley, Jr., Judge
Robert B. Goodall (Easterling & Goodall, on brief), for
appellant.
Marla Lynn Graff, Assistant Attorney General (James S.
Gilmore, III, Attorney General, on brief), for appellee.
Rafael J. Tal (defendant) was convicted of speeding. 	On
appeal, defendant complains that the trial court erroneously ruled
that the Commonwealth had established the accuracy of the radar
device used to determine the speed of his vehicle. 	We disagree and
affirm the conviction.
The parties are fully conversant with the record in this case,
and we recite only those facts necessary to explain our holding.
On the date of the offense, May 30, 1993, Officer L.G. Wilson,
Jr. tested the accuracy of the radar device in issue using three
different methods, including (1) the unit's "internal mode" or
self-test mechanism, (2) two tuning forks, and (3) the speedometer
of the patrol car. 	Each method verified that the radar was
functioning correctly both before and after defendant was charged
with the instant offense.
As evidence that the testing procedures were reliable, the
*Pursuant 	to 	Code 	§ 	17-116.010 	this 	opinion 	is 	not 	designated
for publication.

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Commonwealth, in accordance with Code § 46.2-882, introduced
"Certificate[s] of Accuracy" of the tuning forks1 and a calibration
certificate of the speedometer.2 However, because the tuning fork
certificates were dated approximately six weeks after defendant's
trial in general district court, he argues that the Commonwealth
failed to prove their reliability pursuant to statute. 	See Code
§ 46.2-882.
Code § 46.2-882 states in pertinent part that
[i]n any court or legal proceeding in which any question
arises about the calibration or accuracy of any . . .
radar . . . device . . . used to determine the speed of
any motor vehicle, a certificate, or a true copy thereof,
showing the calibration or accuracy of the speedometer of
any vehicle or of any tuning fork employed in calibrating
or testing the device, and when and by whom the
calibration was made, shall be admissible as evidence of
the facts therein stated. 	No calibration or testing of
such device shall be valid for longer than six months.
Id. (emphasis added).
"By using the alternative conjunction 'or' the legislature
clearly intended to provide alternate methods of proving the
accuracy of the radar device." 	Gray v. Commonwealth, 18 Va. App.
663, 666, 446 S.E.2d 480, 482 (1994). 	"It stands to reason that if
tuning fork tests alone are sufficient to convict, the speedometer
test is equally efficacious. . . . [T]he requirement of duplicate
1Defendant argues for the first time that the "Certificate[s]
of Accuracy" failed to satisfy the requirements of Code § 46.2-882.
It is well established that this Court will not consider on appeal
an argument which was not presented to the trial court. 	Jacques v.
Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991); see
Rule 5A:18. 	Accordingly, we decline to address this issue.
2The speedometer certificate, dated May 19, 1993, was
introduced without objection.

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testing merely suggests that when proof is required in court, the
Commonwealth will be able to elect between methods of proof
according to the evidence available." 	Id. 	Thus, "proof by a
single method will suffice." 	Id.
Accordingly, assuming, without deciding, that the certificates
relating to the tuning forks were untimely,3 we find that the
accuracy of the radar unit was sufficiently shown through the
speedometer testing procedure and affirm the conviction.
Affirmed.
3We decline to address the trial court's conclusion that the
"six months" contemplated by Code § 46.2-882 included a period both
before and after the offense date. 	See Clark v. Commonwealth, 3
Va. App. 474, 481, 351 S.E.2d 42, 45 (1986).