Gerald Hankinson v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: October 10, 1995
• Docket: 0789941
• Status: Unpublished

Opinion

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

- 2 - "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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