COURT OF APPEALS OF VIRGINIA 

Present: Judges McClanahan, Petty and Senior Judge Annunziata 

Argued at Alexandria, Virginia 

RONALD LEE JONES 

 OPINION BY 

v. Record No. 0597-07-4 JUDGE WILLIAM G. PETTY 

 MAY 6, 2008 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF STAFFORD COUNTY 

J. Martin Bass, Judge 

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

 Susan M. Harris, Assistant Attorney General (Robert F. McDonnell, 

Attorney General, on brief), for appellee. 

 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. 
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 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 

1

 A videotape containing audio of the conversation between Jones and Deputy Nelson 

both before and after the arrest was admitted at trial. Although Deputy Nelson testified to a 

number of observations relevant to a probable cause determination, the videotape demonstrates 

that some of these observations occurred after Jones was placed under arrest. In light of our 

decision, we consider only those facts that occurred prior to Jones’ arrest. 
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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 (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 
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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, 537 N.E.2d 363, 364 (Ill. App. Ct. 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

 2

 This Court frequently cites Buchanan, 14 Va. App. at 56, 415 S.E.2d at 239, for the 

proposition that a party violates Rule 5A:20(e) when it fails to present a legal argument to this 

Court. Buchanan cites Holmstrom v. Kunis, 581 N.E.2d 877, 882 (Ill. 1991), for this principle, 

which in turn relies on Trimble, 537 N.E.2d at 364. Thus, this rationale is implicated in our prior 

decisions. 
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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 (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 
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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 (1963). 

Here, the deputy stated that he smelled alcohol on Jones, that Jones’ eyes were red and 

glassy, that he was argumentative, and that Jones refused to perform field sobriety tests. We 

hold that all of these facts, taken together in light of our standard of review, provide sufficient 

probable cause needed to justify the arrest. 

 Jones is correct that the mere odor of alcohol, by itself, is insufficient to establish 

probable cause for arrest. See Wallace v. Commonwealth, 32 Va. App. 497, 505, 528 S.E.2d 

739, 742 (2000) (The odor of alcohol emanating from a suspect provided a police officer with 

“reasonable suspicion that [the appellant] was driving while intoxicated.”); see also United States 

v. Brown, 401 F.3d 588, 597 (4th Cir. 2005) (noting that there is “no published opinion of the 

Virginia appellate courts finding cause [to arrest a suspect] for public intoxication based solely 

on glassy, bloodshot eyes and the strong smell of alcohol”); cf. Jetton v. Commonwealth, 2 

Va. App. 557, 563, 347 S.E.2d 141, 145 (1986) (“It is well established that the mere odor of 

alcohol is insufficient to establish . . . intoxication . . . ” in a criminal trial. (citing Baker v. 

Taylor, 229 Va. 66, 69, 326 S.E.2d 669, 671 (1985))); accord Hill v. Lee, 209 Va. 569, 572, 166 

S.E.2d 274, 276 (1969). 

 However, Deputy Nelson did not solely rely on the odor of alcohol for his belief that 

Jones was possibly engaged in criminal behavior. Instead, the deputy also relied on Jones’ 

physical appearance, his argumentative demeanor, and his persistent refusal to perform any field 
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sobriety tests.3

 See, e.g., Clarke v. Commonwealth, 32 Va. App. 286, 296, 527 S.E.2d 484, 489 

(2000) (holding that a suspect’s bloodshot eyes, erratic speech pattern, and the odor of alcohol 

about the suspect’s person provided probable cause to arrest him for public intoxication); 

Pearson v. Commonwealth, 43 Va. App. 317, 319, 597 S.E.2d 269, 270 (2004) (suspect arrested 

for driving under the influence upon police officer’s observation that his “speech was slightly 

slurred[,]” that he had “a strong odor of alcohol coming from [his] person,” his eyes appeared 

“glassy, watery and bloodshot,” that he was “argumentative” as he talked to the officer, and 

failed several field sobriety tests). 

 While Jones’ refusal to perform any field sobriety tests effectively deprived the deputy of 

direct evidence of the effect alcohol may have had on Jones’ ability to drive, it did provide 

circumstantial evidence of another factor bearing on the issue – Jones’ awareness that the tests 

would reveal his intoxication, or in other words, his consciousness of guilt. 

 It is well settled that evidence allowing the jury to infer a consciousness of guilt, such as 

evidence showing that an accused fled from police, is admissible in criminal trials. See Welch v. 

 3

 For the sake of clarity, however, we emphasize that our analysis is not confined to the 

officer’s testimony. Instead we look to the evidence in the record: 

An action is reasonable under the Fourth Amendment, regardless 

of the individual officer’s state of mind, as long as the 

circumstances, viewed objectively, justify [the] action. It is 

important to remember that we are not limited to what the stopping 

officer says or to evidence of his subjective rationale; rather, we 

look to the record as a whole to determine what facts were known 

to the officer and then consider whether a reasonable officer in 

those circumstances would have been suspicious. Consequently, 

the police officer conducting a stop is not required to precisely and 

individually articulate the facts that added up to suspicion in his 

mind. 

Raab v. Commonwealth, 50 Va. App. 577, 583 n.2, 652 S.E.2d 144, 148 n.2 (2007) (internal 

quotation marks omitted) (alteration and emphasis in original) (citing Brigham City v. Stuart, 

547 U.S. 398, 404 (2006); United States v. Brown, 232 F.3d 589, 594 (7th Cir. 2000)). 
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Commonwealth, 15 Va. App. 518, 525, 425 S.E.2d 101, 106 (1992) (“‘It is today universally 

conceded that the fact of an accused’s flight, escape from custody, resistance to arrest, 

concealment, assumption of a false name, and related conduct, are admissible as evidence of 

consciousness of guilt, and thus of guilt itself.’” (quoting Langhorne v. Commonwealth, 13 

Va. App. 97, 102, 409 S.E.2d 476, 480 (1991))). Thus, a defendant’s refusal to provide 

evidence, not privileged or otherwise protected, that could be incriminating is admissible as 

evidence of guilt. See, e.g., Artis v. Commonwealth, 213 Va. 220, 224, 191 S.E.2d 190, 193 

(1972) (refusing to “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 incriminating evidence was found[]” 

when that refusal was viewed as a tacit admission of guilt). 

 Further, while our Court has not yet determined whether refusal to perform field sobriety 

tests may be used as a factor in a probable cause analysis, other states have.4 We note that the 

 4 See, e.g., State v. Ferm, 7 P.3d 193, 197 (Haw. Ct. App. 2000) (affirming conviction 

when officer arrested appellant for DUI based on his “impaired demeanor, the smell of alcohol 

on his breath and his refusal to undergo a field sobriety test”); State v. Sanchez, 36 P.3d 446, 

449-50 (N.M. Ct. App. 2001) (holding that, while refusal to perform field sobriety tests would 

not, standing alone, provide probable cause, it is a legitimate factor in the probable cause 

determination). Far more courts have decided the analogous issue of whether refusal to perform 

field sobriety tests may be used as substantive evidence to establish intoxication in criminal 

trials. See, e.g., Longley v. State, 776 P.2d 339, 345 (Alaska Ct. App. 1989) (holding evidence 

admissible because “[a] refusal to take the [breath] test is . . . probative of guilt . . .”); Johnson v. 

State, 987 S.W.2d 694, 698 (Ark. 1999) (“The refusal to be tested is admissible evidence on the 

issue of intoxication and may indicate the defendant’s fear of the results of the test and the 

consciousness of guilt.”); State v. Taylor, 648 So. 2d 701, 704 (Fla. 1995) (Appellant’s “refusal 

[to take field sobriety tests] is relevant to show consciousness of guilt.”); People v. Johnson, 819 

N.E.2d 1233, 1237 (Ill. App. Ct. 2004) (Refusal evidence is admissible because “[t]he trier of 

fact can infer that a defendant refused to submit to the test because it would confirm that he was” 

driving under the influence.); cf. State v. Mellett, 642 N.W.2d 779, 786-89 (Minn. Ct. App. 

2002) (refusal evidence admissible; no Fifth Amendment violation); State v. Hoenscheid, 374 

N.W.2d 128, 129 (S.D. 1985) (refusal evidence admissible; no Fifth Amendment violation); 

Seattle v. Stalsbroten, 978 P.2d 1059, 1061 (Wash. 1999) (refusal evidence admissible; no Fifth 

Amendment violation); but see Commonwealth v. Grenier, 695 N.E.2d 1075, 1078-79 (Mass. 

App. Ct. 1998) (holding that refusal evidence is inadmissible on the issue of intoxication based 

on state constitutional grounds).
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Court of Appeals of New Mexico, deciding a case with facts similar to those before us, held that 

while “refusal to perform the field sobriety testing, standing alone” did not “constitute[] probable 

cause for an arrest” it could be “considered, in combination with other factors, to constitute 

probable cause” because such refusal is indicative of a consciousness of guilt. State v. Sanchez, 

36 P.3d 446, 449-50 (N.M. Ct. App. 2001). The Sanchez court went on to hold that the police 

officer’s observation that the suspect smelled strongly of alcohol and had bloodshot, watery eyes, 

in conjunction with his refusal to perform field sobriety tests, provided adequate probable cause 

for the DUI arrest. Id. 

 We are persuaded by our sister state’s reasoning and determine that it is consistent with 

our prior, analogous decisions regarding refusal evidence. See, e.g., Farmer v. Commonwealth, 

12 Va. App. 337, 340-41, 404 S.E.2d 371, 372-73 (1991) (en banc) (holding that the admission 

into evidence of an accused’s refusal to perform a field sobriety test did not offend the Fifth 

Amendment’s prohibition against self-incrimination in a DUI trial).5 

 If, in a prosecution for DUI, evidence of a defendant’s refusal to perform field sobriety 

tests is considered relevant and admissible to establish guilt of the offense, we fail to see how the 

same evidence is not a legitimate factor for an officer’s consideration in assessing the existence 

of probable cause to arrest for the same offense. See Schaum, 215 Va. at 500, 211 S.E.2d at 75 

(“Probable cause, as the very name implies, deals with probabilities. These are not technical; 

they are the factual and practical considerations in everyday life on which reasonable and 

prudent men, not legal technicians, act.”). 

 5

 Because “constitutional questions should not be decided if the record permits final 

disposition of a cause on non-constitutional grounds[,]” Luginbyhl v. Commonwealth, 48 

Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) (en banc), we infer that the refusal evidence was 

probative on the issue of intoxication in Farmer; i.e., the case could not be decided on an 

evidentiary ground such as relevance. As the refusal evidence was probative of guilt, it logically 

follows that it is a relevant factor for an officer’s consideration in making a probable cause 

determination. 
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 While the refusal to perform field sobriety tests, the odor of alcohol, Jones’ glassy-eyed 

appearance, or his argumentative demeanor – when taken separately – may not have provided 

sufficient probable cause in this case, we conclude that these facts taken as a whole provided the 

deputy with sufficient probable cause for arrest in this case. The trial court did not err in holding 

that the deputy had probable cause to arrest Jones for DUI. 

III. CONCLUSION

 Based on the foregoing discussion, we hold that the trial court did not err in finding 

probable cause on these facts. Accordingly, we affirm Jones’ conviction. 

 Affirmed.