Earl A. Terpstra, Jr. v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Willis and Overton
Argued at Alexandria, Virginia
EARL A. TERPSTRA, JR. MEMORANDUM OPINION* BY
v. 	Record No. 0716-95-4 	JUDGE NELSON T. OVERTON
APRIL 9, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
R. Ramsey Maupin for appellant.
Brian Wainger, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Margaret Ann B. Walker, Assistant Attorney
General, on brief), for appellee.
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Earl A. Terpstra was convicted at a bench trial of driving a
motor vehicle while intoxicated, a violation of Code § 18.2-266.
He appeals his conviction on the grounds that (1) the
certificate of breath test results did not comply with the
statute in effect as of his trial date and (2) that evidence of
his drinking after stopping his car fatally tainted the breath
test results. 	For the reasons that follow, we affirm the
conviction.
On June 15, 1994, at approximately 1:00 a.m., Terpstra was
observed by two police officers running a red light and
accelerating quickly away. 	The officers pursued Terpstra's
vehicle, which was travelling between 40 to 50 miles per hour

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through a residential zone. 	They continued, lights and siren
activated, until Terpstra turned off his headlights and pulled
into his driveway.1 The officers approached Terpstra and noticed
his red, glassy eyes and a strong odor of alcohol. 	As the
officers attempted to take Terpstra into custody, he became
belligerent, and the officers were forced to use pepper spray.
Because of Terpstra's uncooperative nature, no field sobriety
tests were administered. 	Terpstra admitted that he had drunk a
few beers at a bowling alley that night. 	The results of his
breath test, given at the county jail, showed a blood alcohol
level of .13%. 	At a trial held March 30, 1995, Terpstra
testified that he did not run a red light, that he did not see
the police officers behind him until he was home, and that after
he had shut his engine off he drank from a bottle of vodka in his
car. 	He was convicted.
Terpstra assigns error to the admission of the breath test
results at trial because the certificate did not comply with the
statutory requirements. 	Code § 18.2-268.9, governing the use of
breath test results as evidence, states in pertinent part:
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
Division's specifications, the equipment on
which the breath test was conducted has been
tested within the past six months and has
been found to be accurate, the name of the
1Terpstra was also convicted of speeding to elude a police
officer under Code § 46.2-817, but does not contest this
conviction on appeal.

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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.
(Emphasis added). 	The 1994 Amendment to Code § 18.2-268.2 added
the emphasized language and became effective July 1, 1994,
fifteen days after the offense in question. 	Terpstra's
certificate lacked this new required language.
We hold that this omission does not render the results
inadmissible in this case. 	The breath test and the certificate
were completed before the new amendment had become effective.
Every step in administering and recording the results of
Terpstra's breath test conformed the statute as it was when the
test was given. 	To require compliance with a provision not yet
law defies common sense. 	Code § 1-16 requires procedural
provisions of the Code in effect on the date of trial to "control
insofar as practicable." 	Code § 1-16; see Smith v. Commonwealth,
219 Va. 455, 476, 248 S.E.2d 135, 148 (1978), cert. denied, 441
U.S. 967 (1979). 	Conformity in this case was clearly not
practicable.
Terpstra also argues that the after-consumed alcohol renders
the breath test results inadmissible. 	This contention fails as
well. 	The measurement of a blood alcohol test creates a
rebuttable presumption that the measurement accurately reflects
the blood alcohol concentration at the time of driving. 	See

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Davis v. Commonwealth, 8 Va. App. 291, 299, 381 S.E.2d 11, 16
(1989). 	The defendant is entitled to challenge this presumption
through evidence calling into question the accuracy of the test
results. 	Id. 	Terpstra attempted to rebut the presumption by
testifying that he drank alcohol after he had stopped his
vehicle. 	We must determine whether the evidence presented at
trial, viewed in the light most favorable to the Commonwealth,
sufficiently rebutted the presumption.
The trial judge heard testimony that Terpstra was stopped
after driving in a careless manner, that his eyes were red and
glassy upon exiting the vehicle, that he was violently
uncooperative with the police, and that he admitted having a few
beers earlier. 	Weighed against the defendant's unsupported claim
that he drank more alcohol after stopping his car, the judge
reasonably could have concluded that Terpstra's blood alcohol
concentration was over the limit allowed by law.
We find that the breath test results were admissible. 	We
further find that the defendant's evidence did not rise to a
level sufficient as a matter of law to rebut the presumption that
the test results accurately reflect the blood alcohol
concentration of the defendant at the time he operated his
vehicle. 	The conviction is affirmed.
Affirmed.