COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Coleman and Elder 

Argued at Richmond, Virginia 

 

JOHN D. HURLEY 

v. Record No. 0527-95-2 MEMORANDUM OPINION* BY 

 JUDGE SAM W. COLEMAN III 

COMMONWEALTH OF VIRGINIA MARCH 5, 1996 

FROM THE CIRCUIT COURT OF MIDDLESEX COUNTY 

John M. Folkes, Judge 

 James C. Breeden (Barbara H. Breeden; 

Hubbard, Breeden & Terry, on brief), for 

appellant. 

 Margaret Ann B. Walker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 John D. Hurley was convicted in a bench trial of driving 

under the influence of alcohol, second offense. Hurley contends 

that the evidence is insufficient to prove that he operated an 

automobile while intoxicated and that the trial court erred by 

considering his prior conviction for driving while under the 

influence of alcohol as affirmative evidence of guilt. We find 

no error and affirm the defendant's conviction. 

 On appeal, the evidence is viewed in the light most 

favorable to the Commonwealth and accorded all reasonable 

inferences fairly deducible therefrom. Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). 

The trial court's verdict will not be disturbed unless "plainly 

 

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

designated for publication. 
- 2 - 

wrong or without evidence to support it." Id.

 In Coffey v. Commonwealth, 202 Va. 185, 116 S.E.2d 257 

(1960), the Supreme Court reversed the accused's conviction for 

driving under the influence because although the evidence showed 

that he was intoxicated approximately one hour after the 

accident, "[n]o evidence was produced to establish [his] 

condition at the time he was actually operating the vehicle." 

Id. at 187, 116 S.E.2d at 258; see also Fowlkes v. Commonwealth, 

194 Va. 676, 678, 74 S.E.2d 683, 684 (1953). 

 The facts in the present case are distinguishable from those 

in Coffey. Here, only a short time after the defendant wrecked 

his car in a single car accident, Donna Sears testified that she 

smelled a "strong" odor of alcohol on the defendant's person when 

she attempted to help him out of his car. Cindy Foor testified 

that she noticed an odor "that seemed to be alcohol" at the scene 

of the accident. Both Sears and Foor claimed that the defendant 

was "combative" and wanted to be left alone. Foor testified that 

he "staggered," and that his walk was "very unstable" when he 

left the scene of the accident. In addition, Trooper E. W. 

Chaney testified that he still smelled a "very strong odor of 

alcohol" about the defendant approximately two hours after the 

accident. This testimony is probative of the defendant's 

condition at the time of the accident because Trooper Chaney 

asked the defendant whether he had drunk anything since the 

accident and the defendant responded, "[h]ell no." Although the 
- 3 - 

defendant's wife testified that she fixed him a drink when he 

came home, the trial court was entitled to rely on the 

defendant's statement to Trooper Chaney that he had not consumed 

any alcohol after the accident. See Overbee v. Commonwealth, 227 

Va. 238, 244, 315 S.E.2d 242, 245 (1984); Wheeling v. City of 

Roanoke, 2 Va. App. 42, 44, 341 S.E.2d 389, 390 (1986). The 

evidence is sufficient, viewed in the light most favorable to the 

Commonwealth, to prove that the defendant was intoxicated at the 

time he was driving and had the accident. 

 The defendant is barred from contending on appeal that the 

trial court erred by considering his prior conviction as 

affirmative evidence of guilt. The defendant did not object to 

the trial court considering the evidence or in any manner raise 

the issue at trial. Rule 5A:18. In rendering the verdict, the 

trial judge stated: 

 [T]here is just so much circumstantial 

evidence here that I can't close my eyes to. 

 [The defendant] told the police officer that 

he had had nothing to drink since the 

accident and his wife said she gave him a 

drink, the excessive speed the first witness 

talked about, the odor of alcohol upon his 

breath when he stopped or when they came out 

to see to him, the fact that he has had a 

previous conviction. 

Because the defendant was charged with driving under the 

influence, second offense, the trial judge may have referred to 

the previous conviction solely to indicate that each element of 

the charge had been proved. However, the defendant's failure to 

make a specific objection denied the trial judge the opportunity 
- 4 - 

to explain or reconsider his ruling. See Martin v. Commonwealth, 

13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992) (en banc) 

("primary function of Rule 5A:18 is to alert the trial judge to 

possible error so that the judge may consider the issue 

intelligently and take any corrective actions necessary to avoid 

unnecessary appeals, reversals and mistrials"). 

 Because the evidence was sufficient to prove beyond a 

reasonable doubt that the defendant was intoxicated while 

operating an automobile, we affirm the conviction. 

Affirmed.