COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Baker and Senior Judge Cole 

Argued at Richmond, Virginia 

ERNEST CLINTON ROBINETTE 

v. Record No. 1178-95-2 MEMORANDUM OPINION* BY 

 JUDGE MARVIN F. COLE 

COMMONWEALTH OF VIRGINIA JULY 9, 1996 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Herbert C. Gill, Jr., Judge 

 Keith N. Hurley (Cawthorn, Picard & Rowe, on 

brief), for appellant. 

 Steven A. Witmer, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 The appellant, Ernest Clinton Robinette, was convicted of 

driving under the influence of alcoholic beverages or other 

self-administered intoxicants and/or drugs, second offense, in 

violation of Code § 18.2-266. On appeal, he contends that the 

evidence was insufficient to convict him of the charge. We 

disagree and affirm the conviction. 

 We examine the evidence in accordance with the following 

standard of review: 

 On appeal, we review the evidence in the 

light most favorable to the Commonwealth, 

granting to it all reasonable inferences 

fairly deducible therefrom. The judgment of 

a trial court sitting without a jury is 

entitled to the same weight as a jury verdict 

and will not be set aside unless it appears 

from the evidence that the judgment is 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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plainly wrong or without evidence to support 

it. 

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 

(1987). 

 In the case before us, David A. Pritchard, a Chesterfield 

County police officer, was the only Commonwealth witness. He 

testified that he was traveling south on Kim Drive in a 

residential section of Chesterfield County, a posted twenty-five 

miles an hour zone, when a 1983 Ford Escort driven by appellant 

came around a curve at about sixty miles an hour. The car drove 

near the curve and went up on two wheels on the passenger side, 

then came down and went up on the other two wheels on the 

driver's side. The vehicle then righted itself and drove in the 

direction of the officer's car, which Pritchard had pulled to the 

right as far as possible until his tires touched the curve, and 

stopped. Appellant's car struck the rear of the officer's 

vehicle and came to a stop in a ditch. Pritchard activated his 

police lights. Appellant drove his car out of the ditch and 

struck a fence post at the entrance of a private driveway. The 

officer pursued him behind a house on Kim Drive. 

 Surrounded by fencing, trees and a shed, appellant stopped 

his car. He got out of the car and ran to the rear of his car 

and towards the officer's car. Pritchard, unable to stop his car 

completely, struck appellant, and severely injured one of his 

legs. The officer arrested appellant. 

 In searching the Ford Escort incident to the arrest, 
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Pritchard found approximately twenty open beer cans. Pritchard 

testified that there was a strong odor of alcohol on appellant's 

breath. Due to the appellant's injury, no sobriety tests were 

administered. Appellant was transported to the Medical College 

of Virginia for medical attention. 

 Pritchard testified that he obtained the warrant from a 

magistrate. Waiting for the magistrate, some four hours after 

the occurrence, Pritchard could still smell alcohol on 

appellant's breath. The magistrate issued the warrant at 3:00 

a.m. on July 23, 1994. This would indicate that the alleged 

offense occurred at approximately 11:00 p.m. on July 22, 1994. 

 The record indicates that appellant made some statements to 

the officer at the scene. He stated to the officer that he had 

"four beers earlier in the evening" and that he had "smoked some 

marijuana earlier in the evening." The record does not indicate 

that any chemical tests were taken. 

 At the conclusion of the Commonwealth's evidence, appellant 

made a motion to strike the evidence, asserting that the 

Commonwealth had the burden to show that his driving was related 

to his drinking and that it had not done so. Appellant conceded 

that his driving made out a case of reckless driving, but the 

drinking of four beers earlier in the evening did not prove 

driving under the influence in the absence of any chemical or 

field sobriety testing. The motion was overruled. 

 Appellant testified in his own defense that someone had 
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walked in front of his car, which had caused his initial erratic 

driving. He stated that he did not know that he had struck a 

police car. He further stated that when he got out of his car, 

he did not know that a police car was following him. Appellant 

renewed his motion to strike and the trial court again overruled 

the motion. 

 "In order to convict the defendant [of 

driving under the influence] it was necessary 

that the Commonwealth establish two things: 

(1) that the defendant was operating or 

driving a motor vehicle, and (2) that he was 

under the influence of intoxicants at the 

time he was driving or operating it." 

Potts v. Commonwealth, 12 Va. App. 1093, 1096, 408 S.E.2d 256, 

257 (1991) (quoting Nicolls v. Commonwealth, 212 Va. 257, 258, 

184 S.E.2d 9, 10 (1971)). 

 It is uncontested that appellant was driving his car. The 

general standard for determining whether someone is "under the 

influence" is stated in Gardner v. Commonwealth, 195 Va. 945, 81 

S.E.2d 614 (1954). 

 "Any person who has drunk enough alcoholic 

beverages to so affect his manner, 

disposition, speech, muscular movement, 

general appearance or behavior, as to be 

apparent to observation, shall be deemed to 

be intoxicated." 

195 Va. at 954, 81 S.E.2d at 619 (quoting former Code § 4-2(14)). 

 "The court . . . trying the case involving a violation of 

clause (ii), (iii) or (iv) of § 18.2-266 . . . shall determine 

the innocence or guilt of the defendant from all the evidence 

concerning his condition at the time of the alleged offense." 
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Code § 18.2-268.10. See also Thurston v. City of Lynchburg, 15 

Va. App. 475, 483, 424 S.E.2d 701, 705 (1992). 

 Evidence at trial in the light most favorable to the 

Commonwealth, with reasonable inferences deducible therefrom, 

showed that appellant was intoxicated through his consumption of 

alcohol and marijuana. He admitted to Pritchard that he had 

drunk four beers and smoked marijuana earlier in the evening, but 

based upon the twenty beer cans in appellant's car and the other 

evidence presented, the trial court reasonably could have 

concluded that he had drunk much more than he admitted. 

 Appellant was traveling at more than twice the posted speed 

limit in a residential area late at night on wet roads. He had 

so little control over his car that at times he drove on only two 

 wheels. He struck a police car and did not realize that he had 

done so. He fled the scene after Pritchard activated his 

emergency lights. During the flight, he struck a fence post at a 

private driveway and did not stop. He stopped only when trapped. 

 He then attempted to flee on foot. 

 Appellant's flight was evidence of consciousness of guilt. 

He claimed that he was unaware that the car he struck and the car 

following him was a police car. Such an incredible claim 

permitted the court to infer either that appellant was highly 

intoxicated at the time or that he was lying to conceal his 

guilt. Furthermore, appellant smelled strongly of alcohol at the 

time of the incident and still smelled of alcohol at least four 
 6 

hours thereafter. 

 The trial court considered all of the evidence concerning 

the appellant's condition at the time of the alleged offense and 

concluded that he was "under the influence" of intoxicants. 

There is credible evidence in the record to support the judgment 

of the trial court that appellant was guilty of driving under the 

influence beyond a reasonable doubt. 

 We affirm the judgment of the trial court. 

 Affirmed.