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. 

 1At 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. 
- 2 - 

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 
- 3 - 

"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.