The author, Marina Medvin, is a passionate trial attorney who focuses her practice exclusively on criminal defense. She advocates for her clients in Federal and Virginia State courthouses on a daily basis. Ms. Medvin is presently accepting clients for criminal cases pending in Alexandria, Fairfax, Arlington, Falls Church, Prince William, and in the United States District Court for the Eastern District of Virginia in Alexandria.

Virginia DWI / DUI & Drunk Driving Laws

Virginia has some of the most serious DUI laws in the country. Virginia Law 18.2-266 criminalizes a drunk driving as follows:
1) driving while under the influence of alcohol
2) driving with a blood alcohol content level of .08 percent or higher
3) driving while under the influence of any narcotic drug or intoxicant

Almost any amount of alcohol in your system can result in a DUI charge. While most charges for drunk driving will have a Blood Alcohol Content (BAC) level of .08 or higher, that’s not required under Virginia law. Thus, a BAC level BELOW .08 can still result in a DUI arrest and conviction!

Virginia law also has an unfortunate twist for defendants. When the blood alcohol level is .08 or higher, the court will presume that the accused was under the influence. This means that when you step into a Courtroom with a DUI case in which a BAC is .08 or above, you are already presumed to have been driving under the influence … and it’s up to you and your lawyer to show otherwise! This is what we are talking about when we say that it’s very easy for a prosecutor to convict someone accused of DUI. Remember, across the United States, the burden of proof rests with the government to prove their case beyond a reasonable doubt. Virginia law bends this rule and allows the court to make presumptions of guilt based on the BAC alone.

When the BAC level is between.05 and .08 there is no such presumption and the prosecutor needs to prove beyond a reasonable doubt that you were driving while intoxicated. And, when the BAC is .05 and below, court will presume that you were not under the influence and it will be up to the prosecutor to prove your intoxication by other evidence.

DUI / DWI PENALTIES

While the punishments outlined above are the minimum and maximum possible punishments for each variation of a Driving Under the Influence offense, the judge may impose any amount of jail time in between the minimum and maximum range of penalties. It is undoubtedly important for you to trust your attorney and be comfortable with your defense to make sure that your case results in an outcome as close to the minimum as possible – if not a dismissal of the charge all together. The importance of a strong defense for your first DUI charge is utmost – as you can see that a second or subsequent CONVICTION will guarantee you jail time.

STANDARD DUI PENALTIES
DUI convictions will always include a probation period for one year called uniform good behavior, alcohol classes from a court-ordered ASAP program (this costs about $300), a fine (usually, the fine is expected to be between $250 and $500 on a first offense), loss of license for one year with a possible restricted license, a jail sentence with some or all of the time suspended, payment of court costs, and the ignition interlock device.

VIRGINIA IMPLIED CONSENT LAW / UNREASONABLE REFUSAL TO PERFORM BREATH/BLOOD TEST

Virginia law has something known as implied consent driving law. This means that you consent to your blood or breath being tested if you are ever arrested for a DUI in Virginia. Virginia punishes refusals to take the tests under Virginia VA Code Section 18.2-268.3 as “unreasonable refusal” to have samples of his blood or breath taken for chemical tests to determine the alcohol or drug content of your blood after a drunk driving arrest as required by Virginia VA Code Section 18.2-268.2. The term “unreasonable” here is really insignificant since almost all refusals are deemed unreasonable.

The implied consent law of post-arrest testing to determine drug or alcohol content of blood is codified in Virginia VA Code Section 18.2-268.2. This law imposes on all drivers passing through Virginia the burden of having to submit to blood or breath analysis upon arrest for DUI, as long as the blood or breath test is offered within 3 hours of the arrest for the drunk driving offense. This consent law is considered a condition of operating your vehicle in Virginia.

Your first refusal crime is considered a civil offense, and not a criminal one under Virginia VA Code 18.2-268.3. However, the penalty is steep. The refusal charge on its own carries a 1 year driver’s license suspension. If, however, you have had a DUI conviction or another refusal conviction in the 10 years prior to your refusal, then the refusal is in fact a crime – a Class 2 misdemeanor, punished by up to 6 months in jail and a $1,000.00 fine. If you had 2 previous convictions for either DUI or refusal, then the refusal will be punished as a Class 1 misdemeanor – with up to 1 year in jail and a $2,500.00 fine.

PRIOR DUI CONVICTION

Prior DUI / DWI convictions will be used to 1) increase your DUI from a misdemeanor to a felony if its a 3rd or subsequent offense within 10 years, or 2) impose higher penalties at sentencing for your new DUI conviction, or 3) add a mandatory minimum sentence to your new conviction.

A common question is can a previous out-of-state DUI or DWI convictions be used against you in court as previous conviction? The short answer is yes. While the convictions for the previous DUI charge must have been based on similar criminal laws, generally, DUI convictions from other states can be used to convict you of a second, third, fourth or subsequent DUI offense in Virginia and you would have to serve the minimum required jail sentence.

JUVENILE “ZERO TOLERANCE” UNDERAGE DRINKING AND DRUNK DRIVING DUI

Virginia law has recently been changed in VA Code 18.2-266.1. Persons under the age of 21 who are caught driving after illegally consuming alcohol with a BAC between .02 and .07 will be charged with a Class 1 misdemeanor DUI. Punishment must include forfeiture of drivers license for 1 year from date of conviction and mandatory minimum fine of $500 or 50 hours of community service. If your BAC was above .08, then even being a minor won’t save you from the 18.2-266 punishment.

PLEA DEAL: REDUCING DUI TO RECKLESS DRIVING – “WET RECKLESS”

In a few instances it is possible for an attorney to negotiate an amendment of the DUI charge to a Reckless Driving charge. Lawyers call this a “wet reckless” plea deal. The benefits of this plea deal include a better sounding charge, no penalty enhancement for a DUI conviction after this charge, a lesser time for license suspension, and sometimes even the ability for you to keep your license. In some very, very rare cases, a judge may amend the DUI charge to a Reckless charge on his own. But since the elements of a Reckless Driving charge are not related to the elements of proof for a DUI charge, judges tend not to make such amendments.

DRIVING ON A SUSPENDED OR REVOKED LICENSE DUE TO DUI CONVICTION – VA LAW §18.2-272

Driving on a revoked license pursuant to a DUI conviction is a class 1 misdemeanor offense, just like the original DUI. Aside from a likely jail sentence of up to a year, the penalty will also include another year of a suspended license. A third violation of this law within a ten-year period is a class 6 felony.

VIOLATING DUI PROBATION OR ASAP VIOLATION – Revocation of suspension of sentence

Under VA law, in any case where the court has suspended a portion of the jail sentence or the fine, the court may revoke the suspension of sentence for any cause the court deems sufficient that occurred at any time within the probation period, or within the period of suspension fixed by the court. (VA Code 19.2-306). In DUI cases, this period tends to be for one year following the DUI conviction.

DUI probation violations and ASAP violations include new criminal charges, failure to go to ASAP classes, testing positive for drugs, etc.

Before imposing a portion or all of the remaining sentence, the court must have a hearing on the issue. The court will serve you with notice that you must appear in court to show cause why the remaining sentence should be imposed. At the hearing, the judge can impose all or some of the remaining sentence, or the judge may again suspend all or any part of this sentence and may place the defendant on probation.

MISDEMEANOR DUI CONVICTION & AUTOMATIC RIGHT TO APPEAL AND GET A NEW TRIAL

In Virginia, anyone convicted of a misdemeanor DUI by a judge in General District Court has a guaranteed automatic right to appeal the DUI conviction within 10 days and get a brand new trial. The second trial will be heard in the Circuit Court – a court of record. One the appeal is filed, the conviction resulting from the court below will be automatically discarded. At the appeal, the defendant has an opportunity to choose to be heard by another judge or to have the case head by a jury instead. The important decision factor is that in Virginia, a jury both determines the verdict and also sentences if the verdict is guilty. Thus, it is important to discuss your case with a lawyer to determine which option is strategically more advantageous for your particular set of facts.

DRINKING WHILE DRIVING

If a cop stops you and finds an open container of alcohol in your vehicle, together with some evidence that you were consuming alcohol, there is a rebuttable presumption that you were driving and consuming alcohol at the same time. Which means that you and your lawyer have to prove otherwise -the burden of the case shifts to the accused. The crime is charged as a class 4 misdemeanor.

CONSEQUENCES OF A DUI CONVICTION

Any alcohol-related offense is very serious for purposes of civilian employment, getting into universities, government employment, obtaining / maintaining a security clearance, military (Army, Marines, Navy, Air Force) punishment, admission to a state bar, law enforcement / police officer employment, and immigration and naturalization, amongst others. Individuals with these concerns must discuss the implication with their attorneys.

ENRIQUEZ v. COMMONWEALTH – Supreme Court of Virginia 2012

This is the most recent example in a series of cases involving convictions for the offense of driving or operating a motor vehicle while under the influence of alcohol where the accused is found in a drunken condition in a parked motor vehicle with the keys in the ignition switch. In all but two of the cases, we sustained the convictions. We will add this case to the list of sustained convictions.

In a bench trial, the defendant, Jean Paul Enriquez, was convicted of driving or operating a motor vehicle while under the influence of alcohol in violation of Code § 18.2-266. Because this was a second offense for Enriquez within five years, the circuit court sentenced him pursuant to the mandatory provisions of Code § 18.2-270. This resulted in a term of confinement in the city jail for twelve months and a fine of $500.00, with all but sixty days of the jail sentence suspended on condition of good behavior for two years. The court also revoked Enriquez’s operator’s license for three years.

Enriquez appealed his conviction to the Court of Appeals of Virginia. In an unpublished opinion, the Court of Appeals affirmed the conviction. Enriquez v. Commonwealth, Record No. 0463-10-4 (April 5, 2011). We awarded Enriquez this appeal. His sole contention is that the evidence was insufficient to convict him as matter of law of operating a motor vehicle while under the influence of alcohol.

BACKGROUND

About 3:00 a.m. on September 18, 2009, Thomas Feeney, a parking enforcement officer in the City of Alexandria, observed a Toyota automobile illegally parked in a bus stop in the 6000 block of Lincolnia Road. While seated in his cruiser, Feeney wrote a ticket for the offense. When he approached the Toyota to place the ticket under the windshield wiper, he could hear the car’s radio playing, and he saw a man in the driver’s seat, apparently asleep. After repeated efforts, Feeney was unable to arouse the man, and he called for help from the Police Department.

Officer Aloysius Asonglefac and Sergeant May of the Alexandria Police Department were dispatched to the Lincolnia Road site for “trouble unknown.” Officer Asonglefac testified that when he arrived he found Enriquez “sleeping behind the wheel” of the Toyota parked in the bus stop.

Officer Asonglefac, Sergeant May, and Parking Enforcement Officer Feeney “knocked on . . . the driver’s side window” and “the sun roof and roof” of the car without arousing Enriquez. Officer Feeney shone a flashlight on Enriquez’s face, with no effect. In two to three minutes, Enriquez awoke, and, after several requests, opened the side door window. Officer Asonglefac “could smell a strong odor of alcoholic beverage” and “a strong odor of marijuana” coming from the car. Enriquez appeared “confused,” “didn’t seem to [k]now where he was,” thought “he was in Arlington,” was “going to see his girlfriend” but was not sure “as to where his girlfriend was.” Officer Asonglefac administered field sobriety tests to Enriquez, but before the tests began he was asked whether he had been drinking that evening. Initially, he said he had not been drinking but then stated that he had a “Long Island Iced Tea about an hour prior to [his] encounter” with the police. When he failed the field sobriety tests, Officer Asonglefac placed him under arrest for driving under the influence.

When he first approached the Toyota, Officer Asonglefac could hear the radio playing and “could see the light from the radio area.” He observed that the keys were in the ignition, but he could not recall whether the keys were in the “on” or the “off” position. Neither could he remember who removed the keys from the ignition, but he was certain that “[w]hen the keys were removed from the ignition, the radio went off.”

STANDARD OF REVIEW

Whether Enriquez operated his vehicle within the meaning of Code § 18.2-266 is a mixed question of law and fact which is reviewed de novo on appeal. Upon appellate review, the evidence and all reasonable inferences flowing therefrom must be viewed in the light most favorable to the prevailing party in the trial court, in this case, the Commonwealth. The judgment of the trial court is presumed to be correct and will be reversed only upon a showing that it is plainly wrong or without evidence to support it. Nelson v. Commonwealth, 281 Va. 212, 215, 707 S.E.2d 815, 816 (2011).

ANALYSIS

As noted earlier, we have previously considered the question whether an intoxicated accused has driven or operated a motor vehicle within the meaning of Code § 18.2-266. We upheld convictions in the following cases: Gallagher v. Commonwealth, 205 Va. 666, 667, 670, 139 S.E.2d 37, 38, 40 (1964) (drunk defendant found sitting at the steering wheel of a car, which was stuck in a ditch with the motor running, the car in gear, and a rear wheel spinning); Nicolls v. Commonwealth, 212 Va. 257, 258, 259, 184 S.E.2d 9, 10, 11 (1971) (drunk defendant found slumped over steering wheel of car, which was parked on hard surface of road with motor running, high beam lights on, and heater in operation); Williams v. City of Petersburg, 216 Va. 297, 298, 301, 217 S.E.2d 893, 894, 896 (1975) (drunk defendant found slumped over steering wheel of vehicle on a paved parking lot with motor running, headlights not on, car doors closed and locked); Lyons v. City of Petersburg, 221 Va. 10, 11-13, 266 S.E.2d 880, 880-82 (1980) (drunk defendant found seated behind steering wheel of car but made no statement about his striking of an unoccupied parked car in the rear and pushing it 25 to 30 feet); Nelson v. Commonwealth, 281 Va. 212, 214-15, 219, 707 S.E.2d 815, 815-16, 818 (2011) (drunk defendant found hunched over in the driver’s seat of a vehicle parked on a cul-de-sac with the radio playing and the ignition key in an “on or accessory position”); Rix v. Commonwealth, 282 Va. 1, 1, 3, 714 S.E.2d 561, 561-62 (2011) (drunk defendant exchanged seats with driver and was found by police sitting behind the steering wheel with keys in the ignition and the engine running).

We reversed convictions in the following two cases: Overbee v. Commonwealth, 227 Va. 238, 240-41, 245, 315 S.E.2d 242, 243, 245 (1984) (drunk defendant found standing in front of a pickup truck with the hood up, engine not running, and key not in ignition); Stevenson v. City of Falls Church, 243 Va. 434, 435-36, 438, 416 S.E.2d 435, 436, 438 (1992) (in early morning hours, drunk defendant found asleep behind steering wheel of car parked on convenience store parking lot, engine and all other mechanical and electrical parts turned off, and key in the ignition, but arresting officer could not recall whether key was in the “on” or the “off” position. In reversing, this Court said it would assume the key was in the “off” position.)

Enriquez argues that his case is similar to Stevenson, but he complains that this Court has not “established a bright line rule to determine whether a person is operating a motor vehicle as a matter of law.” He is undoubtedly correct that we have not established a bright-line rule, so we will revisit the proper considerations in determining whether a person is operating a motor vehicle. In our consideration of the matter, we will turn for assistance to Code § 46.2-100 and to the dissenting opinion in Stevenson. We will also refer to our decision in Williams.

Code § 46.2-100 provides that “`[o]perator’ or `driver’ means every person who either (i) drives or is in actual physical control of a motor vehicle on a highway or (ii) is exercising control over or steering a vehicle being towed by a motor vehicle.” (Emphasis added.)

The dissenting opinion in Stevenson states in part as follows:

Ordinary experience tells us that one in a drunken stupor in the driver’s seat of a vehicle is likely to arouse abruptly, engage the motive power of the vehicle, and roar away imperiling the lives of innocent citizens. This sequence of events easily can occur where, as here, a drunk is sitting behind the steering wheel of a motor vehicle alone, with the key already in the ignition. From a mechanical standpoint, the vehicle is capable of being immediately placed in motion to become a menace to the public, and to its drunken operator.

243 Va. at 439-40, 416 S.E.2d at 438-39. (Compton, J., dissenting) (citations and internal quotation marks omitted) (emphasis added).

We take this opportunity to state that the statutory definition of “operator” is controlling and that any individual who is in actual physical control of a vehicle is an “operator.” We hold, therefore, that the dissenting opinion in Stevenson was correct, and in discerning whether an intoxicated person seated behind the steering wheel of a motor vehicle on a public roadway with the key inserted into the ignition switch of the vehicle is in actual physical control of the vehicle, the position of the key in the ignition switch is not determinative.

In Williams, we stated that operating a motor vehicle included “manipulating the mechanical or electrical equipment of the vehicle . . . which alone, or in sequence, will activate the motive power of the vehicle.” 216 at 300, 217 S.E.2d at 896. Although operating a motor vehicle may be proven by evidence of manipulation of the mechanical or electrical equipment, it need not be proven in that manner. All that is necessary is evidence that the person is in actual physical control of the vehicle within the meaning of Code § 46.2-100.

From the foregoing, we establish the rule that when an intoxicated person is seated behind the steering wheel of a motor vehicle on a public highway and the key is in the ignition switch, he is in actual physical control of the vehicle and, therefore, is guilty of operating the vehicle while under the influence of alcohol within the meaning of Code § 18.2-266.

The evidence in this case showed beyond a reasonable doubt that Enriquez was drunk, that he was seated behind the steering wheel of his vehicle on a public street, and that the key was in the ignition switch of the car. Accordingly, we hold that the evidence was sufficient to support a finding that Enriquez was in actual physical control of the vehicle, and to support his conviction for operating a motor vehicle while under the influence of alcohol in violation of Code § 18.2-266.

CONCLUSION

For the reasons assigned, we will affirm the judgment of the Court of Appeals of Virginia.

Gibson v. Commonwealth, Va: Court of Appeals 2011

Ray Anthony Gibson (“Gibson”) appeals his conviction for driving under the influence, third offense, in violation of Code § 18.2-266. Gibson contends that the trial court erred in denying his motion to suppress testimony regarding his field sobriety tests. For the reasons that follow, we affirm the decision of the trial court.

BACKGROUND

In reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the prevailing party below, in this case the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). So viewed, the evidence demonstrates that, on December 19, 2008, Officer Aaron Will initiated a traffic stop on a vehicle driven by Gibson. After obtaining Gibson’s identification, Officer Will determined that Gibson’s license had been revoked for being a habitual offender. As a result, Officer Will arrested Gibson and placed him in the back of his patrol car. Officer Will then sat in the front seat of his patrol car and began to fill out the paperwork necessary to have Gibson’s vehicle towed.

While filling out the paperwork, Officer Will detected the odor of alcohol coming from the backseat where Gibson was seated. Officer Will asked Gibson if he had been drinking, to which Gibson responded that he had consumed three beers.

Suspecting that Gibson had been driving under the influence of alcohol, Officer Will had Gibson exit the vehicle to perform field sobriety tests. Prior to administering the field sobriety tests, Officer Will asked Gibson whether he had any physical problems. In response, Gibson informed Officer Will that he had a problem with his right knee.

Officer Will administered three tests: a horizontal gaze nystagmus test, a one-legged stand test, and a nine-step walk and turn test. Before the one-legged stand test, Officer Will advised Gibson that, in light of his right knee problem, Gibson could choose which leg he used to perform that sub-test. According to Officer Will, Gibson was unable to successfully perform any of the tests.

Officer Will then offered Gibson the opportunity to take a preliminary breath test, which Gibson accepted. Based on his observations, Officer Will transported Gibson to jail, where Officer Will administered a breath test. The test indicated that Gibson had a blood alcohol content of .17.

Gibson was subsequently charged with driving after his license had been revoked and driving under the influence of alcohol, third offense. Prior to trial, Gibson moved to suppress any statements he made and the field sobriety tests on the grounds that he was not read his Miranda warnings after he was initially arrested for driving after his license had been revoked.[1]

On July 29, 2009, the trial court heard the suppression motion in conjunction with the Commonwealth’s evidence. After hearing the evidence, the trial court granted Gibson’s motion to suppress with regard to any statements Gibson made regarding consumption of alcohol while he was in custody,[2] but denied the motion with respect to the field sobriety tests. Gibson was then found guilty of driving after his license had been revoked and driving under the influence of alcohol, third offense.

Gibson appeals.

ANALYSIS

As always, “[t]he defendant bears the burden of establishing that the denial of his suppression motion was reversible error.” Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910, 913 (2008). Here, Gibson argues that the trial court erred in admitting testimony about the field sobriety tests into evidence. According to Gibson, parts of the field sobriety tests constitute interrogation, namely the question used to validate the tests (i.e., whether Gibson had any physical problems), therefore the field sobriety tests as a whole are testimonial. As such, he contends that any testimony about the field sobriety tests should be excluded as a result of Officer Will’s failure to read Gibson the necessary Miranda warnings prior to initiating the field sobriety tests. We disagree.

The Fifth Amendment to the United States Constitution guarantees that no “person . . . shall be compelled in any criminal case to be a witness against himself.” In Miranda v. Arizona, 384 U.S. 436, 478-79 (1966), the United States Supreme Court extended the Fifth Amendment privilege against self-incrimination to individuals subjected to custodial interrogation by the police.

Under Miranda, before a suspect in police custody may be questioned by law enforcement officers, the suspect must be warned that he has a right to remain silent, that any statement he makes may be used as evidence against him, and that he has a right to have an attorney, either retained or appointed, present to assist him.

Dixon v. Commonwealth, 270 Va. 34, 39, 613 S.E.2d 398, 400 (2005). Failure to give Miranda warnings prior to a custodial interrogation violates the accused’s rights under the Fifth Amendment; therefore, “[s]tatements obtained by law enforcement officers in violation of [the Miranda] rule generally will be subject to exclusion for most proof purposes in a criminal trial.” Id.

There are, however, limits to the protections offered by the Fifth Amendment. Notably, the right against self-incrimination “applies only when the accused is compelled [1] to make a testimonial communication [2] that is incriminating.” Fisher v. United States, 425 U.S. 391, 408 (1976) (emphasis added). For a communication to be considered testimonial, the speaker (or actor) must “reveal, directly or indirectly, his knowledge of facts relating him to the offense or . . . share his thoughts and beliefs with the Government.” Doe v. United States, 487 U.S. 201, 213 (1988). Generally, a “testimonial communication” involves a verbal or written statement, but it may also include acts. See id. at 209 (holding that nonverbal conduct contains a testimonial component whenever the conduct communicates the actor’s thoughts or beliefs to another).

A compelled act “which makes a suspect or accused the source of `real or physical evidence’” is not generally considered a testimonial communication. Schmerber v. California, 384 U.S. 757, 764 (1966). “[C]ompelling the accused merely to exhibit his person for observation . . . prior to trial involves no compulsion of the accused to give evidence having testimonial significance.” United States v. Wade, 388 U.S. 218, 223 (1967). Rather, it is merely “compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have.” Id. This removes from the Fifth Amendment’s protection a multitude of compelled acts that, while leading to the discovery of incriminating evidence, do not themselves make an incriminating factual assertion.[3] For example, the Fifth Amendment “offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” Schmerber, 384 U.S. at 764. Similarly, we have held that a compelled breath test, like other compelled acts, does not violate the Fourth or Fifth Amendments because, as with blood, the alcohol content in a person’s breath is not testimonial. Rowley v. Commonwealth, 48 Va. App. 181, 184, 629 S.E.2d 188, 190 (2006) (citing Schmerber, 384 U.S. at 765).

In the present case, neither the physical components of the field sobriety tests nor Gibson’s inability to perform them constitute a testimonial communication. None of the three tests compelled Gibson to reveal his knowledge, thoughts, or beliefs; rather, they only required him to exhibit certain physical characteristics. Indeed, we note that both the one-legged stand component and the nine-step walk and turn component are synonymous with assuming a stance and walking, actions the Supreme Court has specifically recognized as non-testimonial communications. See Schmerber, 384 U.S. at 764. Moreover, the majority of the states that have addressed this issue have ruled similarly. See, e.g., State v. Devlin, 980 P.2d 1037 (Mont. 1999); State v. Whelan, 728 So. 2d 807 (Fl. Dist. Ct. App. 1999); State v. Nielsen, 936 P.2d 374 (Or. Ct. App. 1997); State v. Theriault, 696 P.2d 718 (Ariz. Ct. App. 1984); Commonwealth v. Brennan, 438 N.E.2d 60 (Mass. 1982); People v. Ramirez, 609 P.2d 616 (Colo. 1980).

Gibson further argues that Officer Will’s question regarding whether he had any physical problems was a custodial interrogation designed to validate the field sobriety test and, as such, his response, that he had a problem with his right knee, should have been suppressed along with the physical components of the field sobriety tests.[4] We disagree.

The Supreme Court has defined interrogation for Miranda purposes as pertaining to “express questioning” as well as “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 300 (1980). In Pennsylvania v. Muniz, 496 U.S. 582 (1990), the Supreme Court recognized two exceptions to this definition of interrogation. The first is the “`routine booking question’ exception which exempts from Miranda’s coverage questions to secure the `biographical data necessary to complete booking or pretrial services.’” Id. at 601 (citations omitted). The second exception applies to inquiries “necessarily `attendant to’ [a legitimate] police procedure.” Id. at 603-04. In Muniz, the Supreme Court specifically applied the second exception to police inquiries into whether a suspect understood instructions on how to perform a field sobriety test.

The “physical problems” question is sufficiently analogous to asking whether Gibson understood Officer Will’s instructions as to how each test is to be performed. Both questions are clearly meant to assure the validity of the test and not to elicit an incriminatory response. See id.

At least one state has similarly recognized that inquiries intended to assure the validity of a legitimate police procedure fall under the “necessarily attendant to a legitimate police procedure” exception. In State v. Blouin, 716 A.2d 826, 830 (Vt. 1998), the Supreme Court of Vermont examined whether a question designed to assure the accuracy of a breath test[5] was “designed to elicit an incriminating response from the defendant” and was therefore a custodial interrogation.[6] The court held that the question was not an interrogation, stating:

In Muniz, 496 U.S. at 603-04, the United States Supreme Court upheld the introduction of responses to “limited and carefully worded inquiries” as to whether a motorist understood instructions to a physical sobriety test, even after that individual was in custody and entitled to Miranda warnings. The Court reasoned that the inquiries were “necessarily `attendant to’ the police procedure,” and were “not elicited in response to custodial interrogation.” Id. We find the [inquiry at issue] analogous to the inquiry at issue in Muniz.

* * * * * * *

Defendant consented to the administration of a breath test. The [inquiry at issue] is designed to help assure the accuracy of the test—an objective as significant to the suspect as to the State. In and of itself, there is nothing incriminating about defendant’s response: if defendant had answered yes to the question, the officer would have merely waited another fifteen minutes to obtain accurate test results. In short, the [inquiry at issue] is not interrogation.

Id. at 829-30.

We find the analysis of the Supreme Court of Vermont persuasive. It is axiomatic that assuring the accuracy of the field sobriety test is just as significant to Gibson as it is to the Commonwealth. See id. at 830. Indeed, had Officer Will not asked the question, there was the potential that Gibson would have attempted to perform the one-legged stand on his injured leg, increasing his chances of failing the test. We further note that, in and of itself, there was nothing incriminating in Gibson’s response to the question.[7] As with the list of compelled acts referred to in Schmerber, while the statement might lead to the discovery of incriminatory evidence, the statement itself does not make an incriminating factual assertion. Schmerber, 384 U.S. at 764. The fact that Gibson has a bad right knee had no direct bearing on his prosecution for driving under the influence, third offense. As such, there was no violation of Gibson’s right against self-incrimination.

CONCLUSION

Officer Will’s failure to read Gibson his Miranda warnings prior to administering the field sobriety tests did not require the suppression of the results of the field sobriety tests. As none of the physical components of the field sobriety tests involved testimonial communication, Gibson’s physical performance during the field sobriety tests was not protected by the Fifth Amendment. Similarly, Officer Will’s question about whether Gibson had any physical problems, and Gibson’s response thereto, were necessarily attendant to a legitimate police procedure: administering the field sobriety tests. The question was designed to assure the validity of the field sobriety tests and not to elicit, nor did it elicit, an incriminating response. Accordingly, the decision of the trial court is affirmed.

Affirmed.

[1] Gibson further argued that the suppression of the statements and the field sobriety tests would necessarily require suppression of the breath tests as the field sobriety tests provided the probable cause justifying the implied consent to administer the breath test.

[2] Specifically, the trial court stated “as far as any incriminating statements once he is in custody, I do think that [Gibson's] argument is correct.”

[3] Likewise, the refusal to perform tests that do not themselves constitute communicative or testimonial evidence is equally non-communicative and non-testimonial and therefore no constitutional violation occurs when the fact of a refusal is admitted into evidence. See South Dakota v. Neville, 459 U.S. 553, 564 (1983); Rowley v. Commonwealth, 48 Va. App. 181, 185-86, 629 S.E.2d 188, 190-91 (2006); Farmer v. Commonwealth, 12 Va. App. 337, 341, 404 S.E.2d 371, 373 (1991) (en banc).

[4] The Commonwealth argues that this portion of Gibson’s argument was not made to the trial court and is therefore waived. See Rule 5A:18. We find that the objection made at trial was sufficient to put this issue before the trial court to the extent that the question at issue was a component of the field sobriety test.

[5] In Blouin, prior to administering the breath test, the trooper asked the defendant whether he had “`burped, belched or vomited within the last fifteen minutes.’ The purpose of the question is to ensure that trace amounts of alcohol are not in the mouth which could render an inaccurate test result.” Id. at 827. The defendant initially replied that he had just burped, but corrected himself and said it was more than fifteen minutes ago. Id.

[6] We recognize that, unlike the present case, where Gibson was never given his Miranda warnings, the defendant in Blouin was read his Miranda warnings and invoked his right to remain silent before being asked the question at issue. Blouin, 716 A.2d at 827. Such a difference is without distinction, as the issue in both cases is the same: whether the officer’s question amounted to a custodial interrogation in violation of the defendant’s Fifth Amendment right against self-incrimination.

[7] In Muniz, the Supreme Court noted that requiring the accused to count out loud while performing the one-legged stand test and the walk and turn test may turn a field sobriety test into a custodial interrogation. Muniz, 496 U.S. at 603. In that situation, the question becomes whether the compelled communication was incriminating. As Gibson does not challenge whether he was required to count out loud during the field sobriety test, and indeed the record is unclear as to whether Gibson or Officer Will counted, we do not consider the issue at this time.

JONES V. COMMONWEALTH – Supreme Court 2010

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 271*271 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.”

272*272 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 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]

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 273*273 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. 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 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.

Justice LEMONS, with whom Justice KINSER joins, concurring.

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 274*274 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 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, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). 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 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 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 275*275 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 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.

[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.

[2] Jones was also indicted for driving under the 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.

[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.

[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).