Jones v. Com.

• Decision Date: 06 May 2008
• Docket Number: Record No. 0597-07-4.
• Citation: 660 S.E.2d 343,51 Va. App. 730
• Parties: Ronald Lee JONES v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

660 S.E.2d 343

51 Va. App. 730

Ronald Lee JONES v. COMMONWEALTH of Virginia.

Record No. 0597-07-4.

Court of Appeals of Virginia, Alexandria.

May 6, 2008.

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

Susan M. Harris, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: McCLANAHAN and PETTY, JJ., and ANNUNZIATA, Senior Judge.

WILLIAM G. PETTY, Judge.

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 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, 116 S.Ct. 1657, 1659, 134 L.Ed.2d 911 (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 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, 181 Ill.App.3d 355, 130 Ill.Dec. 296, 537 N.E.2d 363, 364 (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 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, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (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 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, 83 S.Ct. 407, 413, 9 L.Ed.2d 441 (1963).

Here, the deputy stated that he smelled alcohol...