COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
GERALD HANKINSON
v. Record No. 0789-94-1 MEMORANDUM OPINION * BY
JUDGE NELSON T. OVERTON
COMMONWEALTH OF VIRGINIA OCTOBER 10, 1995
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge
Richard C. Clark (Office of the Public Defender,
on brief), for appellant.
Steven Andrew Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Gerald Hankinson appeals his conviction of driving while
intoxicated on the basis of insufficient evidence. We agree, and
reverse the conviction.
Appellant's car struck and injured a seven-year-old girl at
approximately 5:20 p.m. on October 8, 1993. 1 Forty-five minutes
later appellant was questioned by a police officer. Evidence of
intoxication was found at that time: slurred speech, alcoholic
odor, bloodshot eyes, and physical instability. Appellant
admitted at that time that he had consumed three to four beers
before the accident. He added that he had a further one and a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
At the same trial, appellant was convicted of driving on a
suspended license and hit and run with personal injury. These
issues are not the subject of the appeal.
half beers between the accident and the time the officer arrived.
This last statement was corroborated by his wife, who testified
that appellant had drunk beer and at least two shots of vodka in
that time frame. At 7:55 p.m. appellant took a breath test,
which registered a .11 percent blood alcohol level.
In order to convict appellant on the charge of driving while
intoxicated, the Commonwealth must prove that the defendant was
actually operating his vehicle while intoxicated. The evidence
in the record does not support such a conclusion.
Although the evidence is sufficient to show that the
appellant was under the influence of intoxicants at the time he
was seen by the officer, this determination is not dispositive of
the matter. See Coffey v. Commonwealth, 202 Va. 185, 186, 116
S.E.2d 257, 258-59 (1960) (placing little value on officer's
description of accused when officer arrived 55 minutes after the
accident). The important factor is how intoxicated the appellant
was when he was driving the vehicle. Scant evidence lies in this
category.
The blood alcohol level test contributes little. "[W]here
there is evidence that alcohol has been consumed after driving
the chemical test cannot accurately reflect the blood alcohol
concentration at the time of driving." Davis v. Commonwealth, 8
Va. App. 291, 300, 381 S.E.2d 11, 16 (1989). The test's value
diminishes greatly, if not completely, if the accused consumes
alcohol after driving. Any after-administered test results must
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"be related to the consumption of alcohol before or during the
act of driving." Davis, 8 Va. App. at 298, 381 S.E.2d at 15.
The facts in the instant case show that the appellant did
consume a not insignificant quantity of alcohol after driving.
According to his own accounts at the time, he had more than one
beer in 45 minutes; by his wife's memory he may have had several
drinks of liquor as well. While appellant appeared
unquestionably intoxicated to the officer, the officer could not
have known what appellant's condition was at the time of the
accident. See Coffey, 202 Va. at 186, 116 S.E.2d at 258 (coming
to same conclusion).
The burden in this case is upon the Commonwealth to prove
that "[appellant] was intoxicated while he was operating his
[vehicle], not on [appellant] to show that he became intoxicated
after leaving his parked vehicle." Overbee v. Commonwealth, 227
Va. 238, 244, 315 S.E.2d 242, 245 (1984). The evidence is not
sufficient to support a conviction if it engenders only a
suspicion or even a probability of guilt. Coffey, 202 Va. at
188, 116 S.E.2d at 259. The record may contain evidence that
leads to a probability of intoxication, but it does not contain
evidence to support a conclusion that beyond a reasonable doubt
the appellant was driving while intoxicated.
Reversed and dismissed.
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Gerald Hankinson v. Commonwealth
Combined Opinion