Jones v. Com.

• Decision Date: 15 January 2010
• Docket Number: Record No. 090727.
• Citation: 688 S.E.2d 269,279 Va. 52
• Parties: Ronald Lee JONES v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

688 S.E.2d 269

279 Va. 52

Ronald Lee JONES v. COMMONWEALTH of Virginia.

Record No. 090727.

Supreme Court of Virginia.

January 15, 2010.

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

Susan M. Harris, Asst. Atty. Gen. (William C. Mims, Atty. Gen., on brief), for appellee.

Amicus Curiae: Virginia Ass'n of Criminal Defense Lawyers, Marvin D. Miller, Alexandria (John R. Maus, Louisa, on brief), in support of appellant.

Present: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS, GOODWYN, JJ., and LACY, S.J.

OPINION BY Justice BARBARA MILANO KEENAN.

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 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 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. 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.

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 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 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.

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...