PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons,
Goodwyn, JJ., and Lacy, S.J.
RONALD LEE JONES
v. Record No. 090727 OPINION BY
JUSTICE BARBARA MILANO KEENAN
January 15, 2010
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we review a defendant’s conviction for
unreasonably refusing to submit to a blood or breath test after
being arrested for driving under the influence of alcohol. We
decide 1) whether a court may consider a defendant’s refusal to
participate in “field sobriety tests” 1 as evidence in determining
whether the police had probable cause to arrest the defendant
for driving under the influence of alcohol; and 2) whether the
Court of Appeals erred in determining that the evidence was
sufficient to establish probable cause to arrest the defendant
on that charge.
Ronald L. Jones was convicted in a jury trial in the
Circuit Court of Stafford County of unreasonably refusing to
submit to a breath or blood test, in violation of Code § 18.2-
268.2 (the refusal charge), after having been convicted within
1
As referenced in this opinion, the term “field sobriety
tests” includes tests intended to assess a person’s ability to
perform basic acts at the direction of a police officer,
including acts involving walking, standing, physical balance,
and recitation of various information.
ten years of two prior offenses of driving while under the
influence of alcohol. 2 Jones was sentenced to serve 30 days in
jail and was fined $2,500.
Jones appealed his conviction to the Court of Appeals and
argued, in part, that the police did not have probable cause to
arrest him for driving under the influence of alcohol, third
offense, in violation of Code §§ 18.2-266 and -270, and Code
§ 18.2-10. 3 Thus, Jones contended that his indictment for
unreasonably refusing to submit to a blood or breath test should
have been dismissed.
The Court of Appeals affirmed Jones’ conviction on the
refusal charge in a published opinion. Jones v. Commonwealth,
51 Va. App. 730, 660 S.E.2d 343 (2008). The Court held that the
police had probable cause to arrest Jones based on his physical
appearance, the odor of alcoholic beverages about his person,
his argumentative demeanor, and his refusal to submit to any
field sobriety tests. Id. at 740-41, 660 S.E.2d at 348. In
reaching this conclusion, the Court further held that Jones’
refusal to perform the field sobriety tests was circumstantial
evidence of his “consciousness of guilt.” Id. at 738, 660
2
Jones was also indicted for driving under the influence,
but the record does not include the disposition for that charge.
3
On appeal to the Court of Appeals, Jones also challenged
whether police had reasonable suspicion to stop his vehicle, but
that issue is not before us in this appeal.
2
S.E.2d at 346-47. We awarded Jones an appeal from the Court of
Appeals’ judgment.
We will state the evidence in the light most favorable to
the Commonwealth, the prevailing party in the circuit court.
Dixon v. Commonwealth, 270 Va. 34, 37, 613 S.E.2d 398, 399
(2005); Murphy v. Commonwealth, 264 Va. 568, 570, 570 S.E.2d
836, 837 (2002); McCain v. Commonwealth, 261 Va. 483, 486, 545
S.E.2d 541, 543 (2001). On the night of September 29, 2006,
Sheriff’s Deputy Peter Nelson and several Stafford County police
officers were investigating a burglary of a home. The officers
thought that the thief had fled on foot or as a passenger in a
vehicle. In an effort to apprehend the thief, the officers
placed about eight police vehicles, with activated emergency
lights, as a “perimeter” barrier near the site of the burglary.
Nelson observed Jones drive slowly past the “perimeter”
barrier twice. Nelson, who was wearing his police uniform,
testified that he “flagged down” Jones to ensure that the thief
was not in the back of Jones’ vehicle, which had tinted windows.
When Nelson approached Jones’ vehicle and began speaking with
Jones, Nelson smelled a “strong odor” of alcoholic beverages
coming from Jones’ vehicle.
Nelson testified that when he asked Jones to step out of
his vehicle, Jones complied. Nelson stated that he smelled a
strong odor of alcoholic beverages emanating from Jones’ person.
3
Jones denied that he had been drinking alcoholic beverages that
night, and stated that the odor about his person was
attributable to cough drops and incense.
Nelson testified that Jones’ eyes appeared “a little
glassy” and “a little red,” and that his speech was “a little
bit” slurred. Nelson also stated that Jones’ “articulation was
very difficult,” and that Jones made “irrational” and
inconsistent statements. According to Nelson, Jones stated that
he came to “help” Nelson, but that Nelson “was trying to hurt
him.” In addition, Jones was unable to tell Nelson the county
in which Jones was stopped.
Nelson testified that he repeatedly asked Jones to
participate in field sobriety tests and told Jones, “If you are
not intoxicated, prove to me you’re not intoxicated.” Jones
refused to participate in the tests, and repeatedly asked
Nelson, “Why are you doing this to me?” After speaking with
Jones for a total period of about 15 minutes, Nelson arrested
Jones for driving under the influence of alcohol.
Nelson brought Jones before a magistrate, who informed
Jones regarding the “implied consent” statute, Code § 18.2-
268.2, which required that Jones submit to a blood or breath
test as a result of having operated a motor vehicle on a public
highway. Jones refused to take a test.
4
Before his trial on the refusal charge, Jones filed a
motion to suppress arguing, in part, that Nelson lacked probable
cause to arrest Jones for driving while intoxicated. The
circuit court denied Jones’ motion. After a jury trial, the
circuit court entered final judgment on the refusal charge in
accordance with the jury verdict. Jones appealed this
conviction to the Court of Appeals.
On appeal before this Court, Jones argues that the Court of
Appeals erred in holding that a court may consider a defendant’s
refusal to submit to field sobriety tests as evidence of that
defendant’s “consciousness of guilt.” Jones contends that
because there is no legal requirement that a driver submit to a
field sobriety test, and because a driver may have many innocent
reasons for refusing to submit to such tests, the driver’s
failure to do so is not evidence of a “consciousness of guilt.”
Jones additionally argues that the police lacked probable
cause to arrest him. Thus, according to Jones, because he was
arrested without probable cause, he was not required to submit
to a blood or breath test and should not have been charged under
Code § 18.2-268.2 for refusal to take such a test.
In response, the Commonwealth contends that Jones’ refusal
to perform any field sobriety tests is but one factor supporting
the circuit court’s probable cause determination. In support of
the circuit court’s holding, the Commonwealth additionally
5
relies on Nelson’s testimony regarding Jones’ appearance, his
speech, and the strong odor of alcoholic beverages about Jones’
person.
Initially, we observe that our appellate review of the
sufficiency of the evidence of probable cause includes an issue
of first impression. We consider whether, and to what extent, a
driver’s refusal to submit to field sobriety tests may be
considered by a court as a component factor in the arresting
officer’s probable cause determination. As part of this
analysis, we also consider the Court of Appeals’ holding that
such refusal by a driver constitutes evidence of the driver’s
“consciousness of guilt.”
In our jurisprudence, the term “consciousness of guilt”
generally is applied to affirmative acts of falsehood or flight
immediately following the commission of a crime, which tend to
show a person’s guilty knowledge of, and participation in, a
criminal act. See, e.g., Turman v. Commonwealth, 276 Va. 558,
565, 667 S.E.2d 767, 770-71 (2008) (evidence of actual flight,
but not mere departure from place where crime has been
committed, may be considered with other evidence as tending to
show defendant’s consciousness of guilt); Emmett v.
Commonwealth, 264 Va. 364, 372, 569 S.E.2d 39, 45 (2002)
(defendant’s inconsistent statements to police made after crime
occurred concerning identity of murderer were relevant to show
6
defendant’s consciousness of guilt); Edmondson v. Commonwealth,
248 Va. 388, 390, 448 S.E.2d 635, 637 (1994) (jury was properly
instructed it could consider defendant’s use of false name
immediately after burglary occurred, in context of other
evidence in case, as evidence of his consciousness of guilt);
Jones v. Commonwealth, 208 Va. 370, 374, 157 S.E.2d 907, 910
(1967) (defendant’s flight to avoid arrest was admissible to
show consciousness of guilt in considering whether defendant
committed burglary and attempted robbery); see also McMillan v.
Commonwealth, 188 Va. 429, 432-33, 50 S.E.2d 428, 430 (1948)
(evidence that defendant procured or attempted to procure
absence of witness was admissible to show defendant’s
consciousness of guilt).
Such acts of flight from a crime scene, or of deceitful
behavior immediately following the commission of a crime, are
acts that generally cannot be explained in terms of innocent
human behavior. Thus, when a defendant affirmatively acts in
such a manner, a court may consider those acts in the context of
all the facts presented as evidence tending to show the
defendant’s consciousness of guilt of the crime committed. See
Turman, 276 Va. at 565, 667 S.E.2d at 770-71; Emmett, 264 Va. at
372, 569 S.E.2d at 45; Edmondson, 248 Va. at 390, 448 S.E.2d at
637; Jones, 208 Va. at 374, 157 S.E.2d at 910.
7
A refusal to submit to field sobriety tests, however, can
often be explained in terms of innocent human behavior. Unlike
instances of flight, the use of a false name, or other acts of
deception, a driver refusing to submit to a field sobriety test
has not undertaken affirmative action to deceive or to evade the
police. Moreover, there are numerous innocent reasons why a
person may refuse to engage in tests that are not required by
law, including that a person may be tired, may lack physical
dexterity, may have a limited ability to speak the English
language, or simply may be reluctant to submit to subjective
assessments by a police officer. Therefore, we conclude that a
defendant’s refusal to submit to field sobriety tests is not
evidence of “consciousness of guilt,” and that the Court of
Appeals erred in applying this principle in reviewing the
evidence of probable cause in the present case. 4
4
Relying on Artis v. Commonwealth, 213 Va. 220, 191 S.E.2d
190 (1972), the concurring opinion states that we held that a
defendant’s refusal to try on a coat that contained betting
slips in its pocket was admissible as evidence that the
defendant tacitly admitted he was guilty of operating a lottery.
However, the holding in Artis does not state that the evidence
could be used as evidence of the defendant’s consciousness of
guilt. Rather, we held that such evidence was a tacit admission
that the defendant owned the coat. Id. at 224-25, 191 S.E.2d at
193-94. Thus, the holding in Artis does not affect our
conclusion that a defendant’s refusal to submit to field
sobriety tests differs from a defendant’s affirmative act such
as flight from the scene or deceitful behavior, which can be
used as evidence tending the show the defendant’s consciousness
of guilt of the crime committed.
8
Nevertheless, we recognize that a defendant’s refusal to
submit to field sobriety tests may have some relevance in a
police officer’s assessment of probable cause to arrest that
defendant for driving under the influence of alcohol. When
other facts show a driver’s consumption of alcohol and the
discernable effect of such consumption on the driver’s mental or
physical state, the driver’s refusal to perform field sobriety
tests is circumstantial evidence tending to show the driver’s
awareness that his consumption of alcohol would affect his
ability to perform such tests. Accordingly, we hold that in
determining whether a police officer had probable cause to
arrest a defendant for driving under the influence of alcohol, a
court may consider the driver’s refusal to perform field
sobriety tests when such refusal is accompanied by evidence of
the driver’s alcohol consumption and its discernable effect on
the driver’s mental or physical state.
We next consider whether the record before us supports the
Court of Appeals’ judgment that the police had probable cause to
arrest Jones for driving under the influence of alcohol. We
have stated that probable cause exists “ ‘when the facts and
circumstances within the officer’s knowledge, and of which he
has reasonably trustworthy information, alone are sufficient to
warrant a person of reasonable caution to believe that an
offense has been or is being committed.’ ” Buhrman v.
9
Commonwealth, 275 Va. 501, 505, 659 S.E.2d 325, 327 (2008)
(quoting Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d
833, 836 (1981)); Robinson v. Commonwealth, 273 Va. 26, 40, 639
S.E.2d 217, 225 (2007); Parker v. Commonwealth, 255 Va. 96, 106,
496 S.E.2d 47, 53 (1998). In determining whether a police
officer had probable cause to arrest a defendant, a trial court
must consider the totality of the facts and circumstances
presented and what those facts and circumstances reasonably
meant to a trained police officer. Buhrman, 275 Va. at 505, 659
S.E.2d at 327; Brown v. Commonwealth, 270 Va. 414, 419, 620
S.E.2d 760, 762 (2005); Hollis v. Commonwealth, 216 Va. 874,
877, 223 S.E.2d 887, 889 (1976).
In the present case, as stated above, Deputy Nelson
testified that there was a strong odor of alcoholic beverages
about Jones’ person, that his eyes appeared “a little glassy”
and “a little red,” and that his speech was “a little bit”
slurred. Contrary to these observations, Jones attributed the
odor about his person to cough drops and incense. Jones also
made the illogical comment that he came to “help” Nelson, but
that Nelson “was trying to hurt him.” Additionally, Jones did
not know that he was driving in Stafford County at the time
Nelson stopped him.
In view of this evidence concerning Jones’ physical state
and remarks to Nelson, Jones’ refusal to perform any field
10
sobriety tests was relevant evidence in the probable cause
determination. That other evidence concerning Jones’ physical
and mental state rendered his refusal to perform any field
sobriety tests circumstantial evidence tending to show an
awareness that his consumption of alcohol would affect his
ability to perform those tests.
Based on this record, we conclude that the record supports
the circuit court’s determination that Nelson had probable cause
to arrest Jones for driving under the influence of alcohol.
Accordingly, we further conclude that the Court of Appeals did
not err in confirming the circuit court’s judgment. 5
For these reasons, we will vacate that portion of the Court
of Appeals’ judgment holding that the refusal to submit to field
sobriety tests is evidence of a defendant’s consciousness of
guilt. We will affirm the balance of the Court of Appeals’
judgment.
Affirmed in part,
and vacated in part.
JUSTICE LEMONS, with whom JUSTICE KINSER joins, concurring.
5
We do not consider Jones’ contention at oral argument in
this appeal that admission of evidence of his refusal to perform
field sobriety tests violated his rights under the Fifth
Amendment. Because Jones did not assign error in this Court on
that basis, the issue is not properly before us. See Rule
5:17(C).
11
I concur in the judgment reached by the majority to affirm
the Court of Appeals; however, I do not agree that a portion of
the Court of Appeals opinion should be vacated.
The majority opinion concludes “that a defendant’s refusal
to submit to field sobriety tests is not evidence of
‘consciousness of guilt,’ and that the Court of Appeals erred in
applying this principle in reviewing the evidence of probable
cause in the present case.” The majority opinion also concludes
that
a defendant’s refusal to submit to field sobriety
tests may have some relevance in a police
officer’s assessment of probable cause to arrest
that defendant for driving under the influence of
alcohol. When other facts show a driver’s
consumption of alcohol and the discernable effect
of such consumption on the driver’s mental or
physical state, the driver’s refusal to perform
field sobriety tests is circumstantial evidence
tending to show the driver’s awareness that his
consumption of alcohol would affect his ability
to perform such tests. Accordingly, we hold that
in determining whether a police officer had
probable cause to arrest a defendant for driving
under the influence of alcohol, a court may
consider the driver’s refusal to perform field
sobriety tests when such refusal is accompanied
by evidence of the driver’s alcohol consumption
and its discernable effect on the driver’s mental
or physical state.
It is difficult to reconcile these two conclusions. If a court
is permitted to consider a driver’s refusal to perform field
sobriety tests when such refusal is accompanied by some evidence
of alcohol consumption, consideration of the refusal has to be
12
because it tends to show that the driver does not think he or
she will successfully perform the test – a calculation that
reflects consciousness of guilt for driving under the influence.
A determination of probable cause focuses on two questions:
is there probable cause that an offense has been committed and
is there probable cause that the suspect committed the offense.
Michigan v. DeFillippo, 443 U.S. 31, 36 (1972). Here we have no
issue regarding identity; we only have concern about whether an
offense had been committed. If the fact of refusal to perform
field sobriety tests accompanied by evidence of alcohol
consumption is not evidence of consciousness of guilt for the
purpose of determining whether there is probable cause to
conclude that an offense has been committed, then it is
irrelevant and should not be considered for any purpose. It
seems inconsistent to me to permit consideration of refusal to
perform field sobriety tests in conjunction with evidence of
alcohol consumption for probable cause purposes and
simultaneously declare that it is not evidence of consciousness
of guilt. If, as the majority states, “the driver’s refusal to
perform field sobriety tests is circumstantial evidence tending
to show the driver’s awareness that his consumption of alcohol
would affect his ability to perform such tests,” it most likely
is because the driver is concerned that his state of
13
intoxication may be in violation of the law. This awareness is
“consciousness of guilt.”
The Court of Appeals’ opinion is replete with citations to
the law of other states that permit their courts to consider
evidence of refusal to perform sobriety tests as indicative of
consciousness of guilt. I will not repeat them here.
Additionally, the majority attempts to distinguish the myriad of
cases in our jurisprudence that permit the inference of
consciousness of guilt from such acts as flight or falsehoods,
by asserting that these examples are all affirmative acts while
refusal to perform sobriety tests is not. I do not find the
attempted distinction to have substance. Furthermore, it is not
necessary. In Artis v. Commonwealth, 213 Va. 220, 191 S.E.2d
190 (1972), we considered an analogous question. In Artis, the
defendant was charged with operating a “numbers racket or game.”
Id. at 221, 191 S.E.2d at 191. Upon execution of a search
warrant upon premises where such gambling was suspected, police
found the defendant and also found a coat on a chair near the
defendant. Id. Of the five men visiting the premises when the
police executed the search, only the defendant was not wearing a
coat. Id. at 221-22, 191 S.E.2d at 191. Upon searching the
coat pockets, police found evidence of betting slips. Id. at
222, 191 S.E.2d at 192. When police requested Artis to put on
the coat, obviously to see if it fit, Artis refused. Id. at
14
222, 191 S.E.2d at 191. On appeal, Artis complained, among
other things, that it was error to admit evidence to the jury of
his refusal to put on the coat. We stated
Neither do we 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 the
incriminating evidence was found. The general
rule which governs tacit admissions applies here.
It is properly stated in Owens v. Commonwealth,
186 Va. 689, 699, 43 S.E.2d 895, 899 (1947) where
we said:
“ ‘ . . . In order that the
silence of one accused of crime
following a statement of a fact tending
to incriminate him may have the effect
of a tacit admission, he must have
heard the statement and have understood
that he was being accused of complicity
in a crime, the circumstances under
which the statement was made must have
been such as would afford him an
opportunity to deny or object, and the
statement must have been such, and made
under such circumstances, as would
naturally call for a reply. The test
is whether men similarly situated would
have felt themselves called upon to
deny the statements affecting them in
the event they did not intend to
express acquiescence by their failure
to do so. * * * ’ ” See also Baughan v.
Commonwealth, 206 Va. 28, 141 S.E.2d
750 (1965).
Id. at 224-25, 191 S.E.2d at 193.
Of course there was nothing “affirmative” about Artis’
refusal. Nonetheless, we permitted his refusal to put on the
coat to be considered as a tacit admission of guilt at trial.
Surely, if such a refusal could be used to prove consciousness
15
of guilt at trial as a tacit admission of guilt, the refusal in
this case could be considered as consciousness of guilt for the
purpose of determining probable cause.
While I agree that the opinion of the Court of Appeals
should be affirmed, I cannot join the majority’s determination
to vacate a portion of the opinion.
16