Jones v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges McClanahan, Petty and Senior Judge Annunziata

Argued at Alexandria, Virginia

RONALD LEE JONES

OPINION BY

v. Record No. 0597-07-4 JUDGE WILLIAM G. PETTY

MAY 6, 2008

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF STAFFORD COUNTY

J. Martin Bass, Judge

J. Burkhardt Beale (Boone Beale, on brief), for appellant.

Susan M. Harris, Assistant Attorney General (Robert F. McDonnell,

Attorney General, on brief), for appellee.

A jury convicted the appellant, Ronald Lee Jones, of unreasonable refusal to provide a

breath sample following an arrest for driving under the influence, in violation of Code

§§ 18.2-268.2 and 18.2-268.3. Jones challenges his conviction on appeal, arguing that the trial court

erred when it found that the police had a reasonable, articulable suspicion to stop Jones and when it

found probable cause for Jones’ arrest. Because Jones failed to present any argument supporting his

challenge to the trial court’s finding that the officer had a reasonable articulable suspicion to stop

him, we decline to address it. Further, we hold that the police had probable cause to arrest Jones.

Accordingly, we affirm Jones’ conviction.

I. BACKGROUND

On the night of September 29, 2006, Stafford County Sheriff’s Deputy Peter Nelson was

involved in the investigation of a home invasion burglary with several other officers. As a part of

the investigation, the officers set up a perimeter around the subdivision because they believed that

the thief would try to escape on foot or in a waiting car.

Deputy Nelson observed Jones’ SUV drive by twice very slowly, and he noted that the

windows of the SUV were tinted “very black” and that it was impossible to see if anyone was in the

back seat. The deputy suspected that Jones could be either the suspect or an accomplice. According

to the deputy, he flagged the SUV down. Jones testified at trial that the deputy did not pull him

over; instead, Jones “came to a stop and ask[ed] for his assistance.” Jones testified that he was in

the neighborhood in response to a telephone call from his daughter, who lived there, and was

concerned to see a number of police cars in his daughter’s neighborhood.

The deputy smelled a “definite strong odor of alcohol coming from” Jones when Jones

stepped out of the SUV. Deputy Nelson also described Jones’ eyes as a “little glassy, a little red”

and noted that Jones was argumentative. Based on these observations, Deputy Nelson repeatedly

asked Jones to perform field sobriety tests. Jones refused and stated that Deputy Nelson did not

smell alcohol, but instead smelled incense and cough drops. Deputy Nelson arrested Jones at that

point. 1 The deputy then read Jones the implied consent law. Jones continued to refuse to perform

any field sobriety tests and subsequently refused before the magistrate to submit to a breath test as

required by Code § 18.2-268.2.

In a pretrial motion, Jones argued that the deputy lacked probable cause to arrest him for

driving under the influence and, therefore, his indictment for unreasonably refusing a blood or

breath test should be dismissed. The deputy testified at the hearing on the pretrial motion that he

arrested Jones based on the odor of alcohol and Jones’ physical appearance, demeanor, and the fact

that he refused to perform field sobriety tests. The deputy explained that Jones’ refusal indicated

that he had been previously arrested for DUI and that, in his experience “people with prior

1

A videotape containing audio of the conversation between Jones and Deputy Nelson

both before and after the arrest was admitted at trial. Although Deputy Nelson testified to a

number of observations relevant to a probable cause determination, the videotape demonstrates

that some of these observations occurred after Jones was placed under arrest. In light of our

decision, we consider only those facts that occurred prior to Jones’ arrest.

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DUIs . . . know you have to have probable cause. They understand that . . . the less they give us, the

less of a case we have and I started sensing that.”

The trial court denied Jones’ motion, and a jury subsequently convicted him of unreasonable

refusal to submit to a breath test after having been convicted of two predicate offenses within ten

years. Jones was sentenced to thirty days in jail and was fined $2,500. This appeal followed.

II. ANALYSIS

“On appeal, we apply a de novo standard of review in determining whether a person has

been seized in violation of the Fourth Amendment.” Harris v. Commonwealth, 266 Va. 28, 32,

581 S.E.2d 206, 209 (2003). However, “we are bound by the trial court's findings of historical

fact unless ‘plainly wrong’ or without evidence to support them[,] and we give due weight to the

inferences drawn from those facts by resident judges and local law enforcement officers.”

McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing

Ornelas v. United States, 517 U.S. 690, 691 (1996)). Moreover, we view the evidence in the

light most favorable to the Commonwealth, the party prevailing below, and afford that party all

reasonable inferences fairly deducible therefrom. Commonwealth v. Grimstead, 12 Va. App.

1066, 1067, 407 S.E.2d 47, 48 (1991).

A. Reasonable Suspicion

In his question presented, Jones challenges the trial court’s ruling that Deputy Nelson had

the requisite reasonable articulable suspicion to stop him. We are precluded from reaching the

merits of this argument by the Rules of this Court because Jones presents no argument on this issue.

Indeed, Jones does not cite legal authority in support of his argument, nor does the term “reasonable

suspicion” appear anywhere in his brief other than in the question presented.

Rule 5A:20(e) requires that an appellant’s opening brief contain “[t]he principles of law,

the argument, and the authorities relating to each question presented.” Unsupported assertions of

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error “do not merit appellate consideration.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415

S.E.2d 237, 239 (1992). One of our sister courts has ably explained the rationale behind its

version of Rule 5A:20:

A court of review is entitled to have the issues clearly defined and

to be cited pertinent authority. The appellate court is not a

depository in which the appellant may dump the burden of

argument and research. To ignore such a rule by addressing the

case on the merits would require this court to be an advocate for, as

well as the judge of the correctness of, [appellant’s] position on the

issues he raises. On the other hand, strict compliance with the

rules permits a reviewing court to ascertain the integrity of the

parties’ assertions which is essential to an accurate determination

of the issues raised on appeal.

People v. Trimble, 537 N.E.2d 363, 364 (Ill. App. Ct. 1989) (internal citations omitted). 2

Here, Jones merely recites facts and indicates that the trial court’s determination was

unfair. This is not an appropriate appellate argument, and we cannot address it.

B. Probable Cause

According to Code § 18.2-268.2(A), in pertinent part:

Any person . . . who operates a motor vehicle upon a highway . . .

in the 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 [driving under the influence] within

three hours of the alleged offense.

An unreasonable refusal to comply with the provisions of Code § 18.2-268.2 is punishable under

Code § 18.2-268.3. Jones argues that the implied consent law was not triggered because the

deputy lacked probable cause to lawfully arrest him for driving under the influence. See

2

This Court frequently cites Buchanan, 14 Va. App. at 56, 415 S.E.2d at 239, for the

proposition that a party violates Rule 5A:20(e) when it fails to present a legal argument to this

Court. Buchanan cites Holmstrom v. Kunis, 581 N.E.2d 877, 882 (Ill. 1991), for this principle,

which in turn relies on Trimble, 537 N.E.2d at 364. Thus, this rationale is implicated in our prior

decisions.

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Goodman v. Commonwealth, 37 Va. App. 374, 383, 558 S.E.2d 555, 560 (2002) (holding “that

where the arresting officer has probable cause to believe [a] . . . driver has violated Code

§ 18.2-266, the implied consent law operates to permit the taking and testing of blood from that

driver . . .”). Jones concludes that we must therefore reverse his conviction for unreasonable

refusal.

Jones reasons that the deputy lacked probable cause to arrest him because the videotape of

the encounter, according to Jones, does not indicate that he was intoxicated, there is no evidence

that he had consumed enough alcohol to affect his behavior, and the mere odor of alcohol on his

breath or his person, standing alone, was not enough to establish probable cause. For the reasons

stated below, we disagree with Jones, and affirm his conviction.

Our Supreme Court has frequently stated the basis for determining whether probable cause

existed to support a warrantless arrest. It “exists when the facts and circumstances within the

arresting officer’s knowledge and of which he has reasonably trustworthy information are

sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has

been or is being committed.” Schaum v. Commonwealth, 215 Va. 498, 500, 211 S.E.2d 73, 75

(1975) (citing Draper v. United States, 358 U.S. 307, 313 (1959); Oglesby v. Commonwealth,

213 Va. 247, 250, 191 S.E.2d 216, 218 (1972)).

In reviewing a probable cause determination we use “an objective test based on a

reasonable and trained police officer’s view of the totality of the circumstances.” Brown v.

Commonwealth, 270 Va. 414, 419, 620 S.E.2d 760, 762 (2005); see also Yancey v.

Commonwealth, 30 Va. App. 510, 516, 518 S.E.2d 325, 328 (1999) (“When determining

whether probable cause supports an arrest, we do not examine each element separately for a

determinative fact, but instead consider the totality of the circumstances.”). Probable cause does

not require “an actual showing” of criminal behavior; “[r]ather, [the Commonwealth need only

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show] a probability or substantial chance of criminal behavior.” Purdie v. Commonwealth, 36

Va. App. 178, 185, 549 S.E.2d 33, 37 (2001) (citations omitted). Moreover, it is well settled that

the “arresting officer need not have in hand evidence which would suffice to convict. The

quantum of information which constitutes probable cause . . . must be measured by the facts of

the particular case.” Wong Sun v. United States, 371 U.S. 471, 479 (1963).

Here, the deputy stated that he smelled alcohol on Jones, that Jones’ eyes were red and

glassy, that he was argumentative, and that Jones refused to perform field sobriety tests. We

hold that all of these facts, taken together in light of our standard of review, provide sufficient

probable cause needed to justify the arrest.

Jones is correct that the mere odor of alcohol, by itself, is insufficient to establish

probable cause for arrest. See Wallace v. Commonwealth, 32 Va. App. 497, 505, 528 S.E.2d

739, 742 (2000) (The odor of alcohol emanating from a suspect provided a police officer with

“reasonable suspicion that [the appellant] was driving while intoxicated.”); see also United States

v. Brown, 401 F.3d 588, 597 (4th Cir. 2005) (noting that there is “no published opinion of the

Virginia appellate courts finding cause [to arrest a suspect] for public intoxication based solely

on glassy, bloodshot eyes and the strong smell of alcohol”); cf. Jetton v. Commonwealth, 2

Va. App. 557, 563, 347 S.E.2d 141, 145 (1986) (“It is well established that the mere odor of

alcohol is insufficient to establish . . . intoxication . . . ” in a criminal trial. (citing Baker v.

Taylor, 229 Va. 66, 69, 326 S.E.2d 669, 671 (1985))); accord Hill v. Lee, 209 Va. 569, 572, 166

S.E.2d 274, 276 (1969).

However, Deputy Nelson did not solely rely on the odor of alcohol for his belief that

Jones was possibly engaged in criminal behavior. Instead, the deputy also relied on Jones’

physical appearance, his argumentative demeanor, and his persistent refusal to perform any field

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sobriety tests. 3 See, e.g., Clarke v. Commonwealth, 32 Va. App. 286, 296, 527 S.E.2d 484, 489

(2000) (holding that a suspect’s bloodshot eyes, erratic speech pattern, and the odor of alcohol

about the suspect’s person provided probable cause to arrest him for public intoxication);

Pearson v. Commonwealth, 43 Va. App. 317, 319, 597 S.E.2d 269, 270 (2004) (suspect arrested

for driving under the influence upon police officer’s observation that his “speech was slightly

slurred[,]” that he had “a strong odor of alcohol coming from [his] person,” his eyes appeared

“glassy, watery and bloodshot,” that he was “argumentative” as he talked to the officer, and

failed several field sobriety tests).

While Jones’ refusal to perform any field sobriety tests effectively deprived the deputy of

direct evidence of the effect alcohol may have had on Jones’ ability to drive, it did provide

circumstantial evidence of another factor bearing on the issue – Jones’ awareness that the tests

would reveal his intoxication, or in other words, his consciousness of guilt.

It is well settled that evidence allowing the jury to infer a consciousness of guilt, such as

evidence showing that an accused fled from police, is admissible in criminal trials. See Welch v.

3

For the sake of clarity, however, we emphasize that our analysis is not confined to the

officer’s testimony. Instead we look to the evidence in the record:

An action is reasonable under the Fourth Amendment, regardless

of the individual officer’s state of mind, as long as the

circumstances, viewed objectively, justify [the] action. It is

important to remember that we are not limited to what the stopping

officer says or to evidence of his subjective rationale; rather, we

look to the record as a whole to determine what facts were known

to the officer and then consider whether a reasonable officer in

those circumstances would have been suspicious. Consequently,

the police officer conducting a stop is not required to precisely and

individually articulate the facts that added up to suspicion in his

mind.

Raab v. Commonwealth, 50 Va. App. 577, 583 n.2, 652 S.E.2d 144, 148 n.2 (2007) (internal

quotation marks omitted) (alteration and emphasis in original) (citing Brigham City v. Stuart,

547 U.S. 398, 404 (2006); United States v. Brown, 232 F.3d 589, 594 (7th Cir. 2000)).

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Commonwealth, 15 Va. App. 518, 525, 425 S.E.2d 101, 106 (1992) (“‘It is today universally

conceded that the fact of an accused’s flight, escape from custody, resistance to arrest,

concealment, assumption of a false name, and related conduct, are admissible as evidence of

consciousness of guilt, and thus of guilt itself.’” (quoting Langhorne v. Commonwealth, 13

Va. App. 97, 102, 409 S.E.2d 476, 480 (1991))). Thus, a defendant’s refusal to provide

evidence, not privileged or otherwise protected, that could be incriminating is admissible as

evidence of guilt. See, e.g., Artis v. Commonwealth, 213 Va. 220, 224, 191 S.E.2d 190, 193

(1972) (refusing to “find any error in the action of the court in permitting the Commonwealth to

show that defendant refused to try on the coat in which incriminating evidence was found[]”

when that refusal was viewed as a tacit admission of guilt).

Further, while our Court has not yet determined whether refusal to perform field sobriety

tests may be used as a factor in a probable cause analysis, other states have. 4 We note that the

4

See, e.g., State v. Ferm, 7 P.3d 193, 197 (Haw. Ct. App. 2000) (affirming conviction

when officer arrested appellant for DUI based on his “impaired demeanor, the smell of alcohol

on his breath and his refusal to undergo a field sobriety test”); State v. Sanchez, 36 P.3d 446,

449-50 (N.M. Ct. App. 2001) (holding that, while refusal to perform field sobriety tests would

not, standing alone, provide probable cause, it is a legitimate factor in the probable cause

determination). Far more courts have decided the analogous issue of whether refusal to perform

field sobriety tests may be used as substantive evidence to establish intoxication in criminal

trials. See, e.g., Longley v. State, 776 P.2d 339, 345 (Alaska Ct. App. 1989) (holding evidence

admissible because “[a] refusal to take the [breath] test is . . . probative of guilt . . .”); Johnson v.

State, 987 S.W.2d 694, 698 (Ark. 1999) (“The refusal to be tested is admissible evidence on the

issue of intoxication and may indicate the defendant’s fear of the results of the test and the

consciousness of guilt.”); State v. Taylor, 648 So. 2d 701, 704 (Fla. 1995) (Appellant’s “refusal

[to take field sobriety tests] is relevant to show consciousness of guilt.”); People v. Johnson, 819

N.E.2d 1233, 1237 (Ill. App. Ct. 2004) (Refusal evidence is admissible because “[t]he trier of

fact can infer that a defendant refused to submit to the test because it would confirm that he was”

driving under the influence.); cf. State v. Mellett, 642 N.W.2d 779, 786-89 (Minn. Ct. App.

2002) (refusal evidence admissible; no Fifth Amendment violation); State v. Hoenscheid, 374

N.W.2d 128, 129 (S.D. 1985) (refusal evidence admissible; no Fifth Amendment violation);

Seattle v. Stalsbroten, 978 P.2d 1059, 1061 (Wash. 1999) (refusal evidence admissible; no Fifth

Amendment violation); but see Commonwealth v. Grenier, 695 N.E.2d 1075, 1078-79 (Mass.

App. Ct. 1998) (holding that refusal evidence is inadmissible on the issue of intoxication based

on state constitutional grounds).

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Court of Appeals of New Mexico, deciding a case with facts similar to those before us, held that

while “refusal to perform the field sobriety testing, standing alone” did not “constitute[] probable

cause for an arrest” it could be “considered, in combination with other factors, to constitute

probable cause” because such refusal is indicative of a consciousness of guilt. State v. Sanchez,

36 P.3d 446, 449-50 (N.M. Ct. App. 2001). The Sanchez court went on to hold that the police

officer’s observation that the suspect smelled strongly of alcohol and had bloodshot, watery eyes,

in conjunction with his refusal to perform field sobriety tests, provided adequate probable cause

for the DUI arrest. Id.

We are persuaded by our sister state’s reasoning and determine that it is consistent with

our prior, analogous decisions regarding refusal evidence. See, e.g., Farmer v. Commonwealth,

12 Va. App. 337, 340-41, 404 S.E.2d 371, 372-73 (1991) (en banc) (holding that the admission

into evidence of an accused’s refusal to perform a field sobriety test did not offend the Fifth

Amendment’s prohibition against self-incrimination in a DUI trial).5

If, in a prosecution for DUI, evidence of a defendant’s refusal to perform field sobriety

tests is considered relevant and admissible to establish guilt of the offense, we fail to see how the

same evidence is not a legitimate factor for an officer’s consideration in assessing the existence

of probable cause to arrest for the same offense. See Schaum, 215 Va. at 500, 211 S.E.2d at 75

(“Probable cause, as the very name implies, deals with probabilities. These are not technical;

they are the factual and practical considerations in everyday life on which reasonable and

prudent men, not legal technicians, act.”).

5

Because “constitutional questions should not be decided if the record permits final

disposition of a cause on non-constitutional grounds[,]” Luginbyhl v. Commonwealth, 48

Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) (en banc), we infer that the refusal evidence was

probative on the issue of intoxication in Farmer; i.e., the case could not be decided on an

evidentiary ground such as relevance. As the refusal evidence was probative of guilt, it logically

follows that it is a relevant factor for an officer’s consideration in making a probable cause

determination.

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While the refusal to perform field sobriety tests, the odor of alcohol, Jones’ glassy-eyed

appearance, or his argumentative demeanor – when taken separately – may not have provided

sufficient probable cause in this case, we conclude that these facts taken as a whole provided the

deputy with sufficient probable cause for arrest in this case. The trial court did not err in holding

that the deputy had probable cause to arrest Jones for DUI.

III. CONCLUSION

Based on the foregoing discussion, we hold that the trial court did not err in finding

probable cause on these facts. Accordingly, we affirm Jones’ conviction.

Affirmed.

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