COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, Malveaux and Senior Judge Frank 

Argued at Newport News, Virginia 

JUSTIN DEAN HEDGPETH 

 MEMORANDUM OPINION*

 BY 

v. Record No. 0107-17-1 JUDGE ROBERT J. HUMPHREYS 

 DECEMBER 27, 2017 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND 

COUNTY OF JAMES CITY 

Randolph T. West, Judge Designate 

 Michael A. Hyman (Collins & Hyman PLC, on brief), for appellant. 

 David M. Uberman, Assistant Attorney General (Mark R. Herring, 

Attorney General, on brief), for appellee. 

On September 7, 2016, in the Circuit Court for the City of Williamsburg and the County 

of James City (the “circuit court”), Justin Dean Hedgpeth (“Hedgpeth”) was convicted of two 

counts of misdemeanor eluding police, in violation of Code § 46.2-817, driving while intoxicated 

(third or subsequent in ten years), in violation of Code § 18.2-266, and two counts of driving on 

a revoked license, in violation of Code § 46.2-391(D)(2). Hedgpeth was also convicted of petit 

larceny, second offense, in violation of Code § 18.2-96.1

 On appeal, Hedgpeth alleges two 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

1

 On March 17, 2016, Hedgpeth became the subject of an investigation for petit larceny 

that occurred at a Martin’s store. At the trial on September 7, 2016, Hedgpeth stipulated that he 

took beer from Martin’s without paying and without permission and that he was thereafter sought 

by police while operating a motor vehicle on March 17, 2016. After being stopped by a police 

officer, Hedgpeth fled the scene. Here, however, Hedgpeth challenges only his conviction for 

driving while intoxicated and one of his convictions for driving on a revoked license, which stem 

from a separate incident on March 12, 2016. The March 12, 2016 incident is the subject matter 

of this appeal. 

UNPUBLISHED 
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assignments of error: (1) that the facts are insufficient to convict him of driving while 

intoxicated, third or subsequent within ten years, and (2) that the facts are insufficient to convict 

him of driving on a revoked license. 

“When reviewing a defendant’s challenge to the sufficiency of the evidence to sustain a 

conviction, this Court reviews the evidence in the light most favorable to the Commonwealth, as 

the prevailing party at trial, and considers all inferences fairly deducible from that evidence.” 

Allen v. Commonwealth, 287 Va. 68, 72, 752 S.E.2d 856, 858-59 (2014). An appellate court 

may reverse the judgment of the trial court “if the judgment ‘is plainly wrong or without 

evidence to support it.’” Crawford v. Commonwealth, 281 Va. 84, 112, 704 S.E.2d 107, 123 

(2011) (quoting Code § 8.01-680). “If there is evidence to support the convictions, the reviewing 

court is not permitted to substitute its own judgment, even if its opinion might differ from the 

conclusions reached by the finder of fact at the trial.” Id. (quoting Commonwealth v. Jenkins, 

255 Va. 516, 520, 499 S.E.2d 263, 265 (1998)). The issue on appeal is “whether, after viewing 

the evidence in the light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.” McMillan v. 

Commonwealth, 277 Va. 11, 19, 671 S.E.2d 396, 399 (2009) (quoting Maxwell v. 

Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008)). 

Accordingly, the evidence is that on March 12, 2016, Williamsburg Police Officer D. 

Mizelle (“Officer Mizelle”) witnessed Hedgpeth make an illegal right turn. Two clearly visible 

traffic signs prohibiting right turns were posted at the intersection. Officer Mizelle initiated a 

traffic stop on Hedgpeth’s vehicle after Hedgpeth maneuvered his vehicle through a narrow 

alleyway and parked in a parking lot. When Hedgpeth gave Officer Mizelle his driver’s license, 

Officer Mizelle “could smell a strong odor of an alcoholic beverage coming from the vehicle.” 
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Officer Mizelle asked Hedgpeth to step out of his vehicle to complete a field sobriety test. 

Hedgpeth exited his vehicle but refused to take a field sobriety test. Instead, Hedgpeth attempted 

to light a cigarette. When Officer Mizelle asked Hedgpeth not to do so, Hedgpeth replied “[i]f 

you’re going to take me to jail for whatever, go ahead and take me to jail.” Officer Mizelle 

asked Hedgpeth to perform a field sobriety test a second time, but Hedgpeth again refused. 

Officer Mizelle noticed a strong odor of alcohol emanating from Hedgpeth’s person and that 

Hedgpeth’s speech was slurred. Hedgpeth attempted to light another cigarette but then ran from 

the scene. Hedgpeth’s flight from Officer Mizelle took him through the parking lot, down an 

embankment, and into a wooded area. 

Remaining with a passenger in Hedgpeth’s vehicle, Officer Mizelle observed an open 

bottle of whiskey and an open two-liter bottle of soda in the backseat. Hedgpeth’s vehicle 

contained two cups in the center console that “were filled with a brown liquid that . . . smelled of 

an alcoholic beverage.” Officer Mizelle also noticed that the key to Hedgpeth’s vehicle 

was removed from the ignition and dropped behind the front passenger seat. 

Hedgpeth was subsequently apprehended. On September 7, 2016, Hedgpeth pleaded not 

guilty to all charges against him—two counts of misdemeanor eluding, driving while intoxicated, 

two counts of driving on a revoked license, and one count of petit larceny. Hedgpeth stipulated 

that he fled from Officer Mizelle. Hedgpeth also stipulated that his license was revoked at the 

time. Finally, Hedgpeth conceded that he had two prior convictions for driving while intoxicated 

in the ten years prior to his arrest and that he was the driver of the vehicle during the incident 

upon which this appeal is based. 

Following a bench trial where only Officer Mizelle testified, the circuit court convicted 

Hedgpeth of all charges. Explaining its decision, the circuit court noted that the case was a 

“close call as far as the DUI is concerned.” The circuit court then convicted Hedgpeth and 
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specifically noted the fact that Hedgpeth refused to take a field sobriety test and subsequently 

fled the scene. Additionally, the circuit court observed that there was a “strong odor of alcohol 

coming from [Hedgpeth’s] car” as well as an “odor of alcohol” on Hedgpeth’s breath. This 

appeal follows. 

Code § 18.2-266 prohibits a person from operating a motor vehicle “while such person is 

under the influence of alcohol . . . .” In the absence of forensic testing demonstrating blood 

alcohol content in excess of the proscribed limit, the degree of intoxication, or being under the 

influence of alcohol, “is established when any person has consumed enough alcoholic beverages 

to ‘so affect his manner, disposition, speech, muscular movement, general appearance or 

behavior, as to be apparent to observation.’” Thurston v. Lynchburg, 15 Va. App. 475, 483, 424 

S.E.2d 701, 705 (1992) (quoting Gardner v. Commonwealth, 195 Va. 945, 954, 81 S.E.2d 614, 

619 (1954)). In determining whether a defendant was intoxicated, a factfinder considers “all of 

the evidence of his condition at the time of the alleged offense.” Leake v. Commonwealth, 27 

Va. App. 101, 109, 497 S.E.2d 522, 526 (1998) (quoting Brooks v. City of Newport News, 224 

Va. 311, 315, 295 S.E.2d 801, 804 (1982)). 

Hedgpeth supports his first assignment of error by offering alternative explanations for 

each piece of circumstantial evidence that the circuit court relied upon to convict Hedgpeth of 

driving while intoxicated. Attempting to explain the odor of alcohol emanating from his vehicle 

and person, Hedgpeth argues that, since he fled the scene shortly after Office Mizelle approached 

him, Officer Mizelle only had a limited interaction with him and, consequently, Officer Mizelle 

could not conclusively establish that he was intoxicated. Hedgpeth also insinuates that the 

passenger in his vehicle was responsible for the odor of alcohol and the open containers. 

Attempting to explain his attempts to light a cigarette against the wishes of Officer Mizelle, 

Hedgpeth posits that “his decision to light a cigarette against the direction of Officer Mizelle is 
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immaterial to the issue of intoxication.” Finally, Hedgpeth argues that, “[d]espite the 

Commonwealth’s efforts, the evidence demonstrates reasonable doubt as to whether [Hedgpeth] 

was intoxicated.” In support of this last argument, Hedgpeth asserts that since he maneuvered 

his vehicle through a difficult turn, down a narrow alleyway, successfully parked in a tight 

parking space, and had no difficulty in running “down a pathway through a wooded area and 

down an embankment” in his successful attempt to elude Officer Mizelle, he could not have been 

impaired to the point of intoxication. According to Hedgpeth, these facts demonstrate “that his 

ability to drive at the time [was] exceptional.” 

Hedgpeth also argues that, other than slurred speech, Officer Mizelle’s testimony did not 

present any other indicia of intoxication typically found in a driving while intoxicated case. 

Hedgpeth notes that the evidence did not show that he had a flushed face, bloodshot eyes, or 

otherwise intoxicated disposition. Further, Hedgpeth attempts to justify his flight from Officer 

Mizelle by relying on Jones v. Commonwealth, 279 Va. 52, 688 S.E.2d 269 (2010). Hedgpeth 

argues that, under Jones, “[a] refusal to submit to field sobriety tests . . . can often be explained 

in terms of innocent human behavior.” Id. at 58, 688 S.E.2d at 272. 

Hedgpeth’s reliance on Jones, however, is misplaced. Hedgpeth is correct that the refusal 

to submit to a field sobriety test alone is insufficient to infer consciousness of guilt. Hedgpeth, 

however, chooses to ignore the very next sentence in Jones, which states “[u]nlike instances of 

flight . . . or other acts of deception, a driver refusing to submit to a field sobriety test has not 

undertaken affirmative action to deceive or to evade the police.” Id. (emphasis added). While 

our Supreme Court set forth several examples of innocent human behavior justifying a field 

sobriety test refusal—including tiredness, a lack of physical dexterity, a limited ability to speak 

the English language, or a reluctance to submit to subjective assessments by a police officer—

those justifications do not apply here. Further, Jones stands for the proposition that the refusal to 
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perform a field sobriety test, without more, is insufficient to demonstrate a defendant’s 

consciousness of guilt. See id. at 60, 688 S.E.2d at 273. In this case there was more than his 

mere refusal to perform a field sobriety test. Moreover, it is clear that “the refusal to submit to 

field sobriety tests is evidence of a defendant’s consciousness of guilt.” See id. Because the 

record does not support any reasonable inference of any innocent explanation for Hedgpeth’s 

actions, Jones lends no support to Hedgpeth’s argument. 

Here, the circuit court properly weighed all of the evidence, including Hedgpeth’s novel 

speculations suggesting alternate conclusions from those facts, before finding Hedgpeth guilty of 

driving while intoxicated. In doing so, the circuit court explicitly relied on the totality of the 

evidence that, taken together, present compelling circumstantial evidence that Hedgpeth was 

driving while intoxicated. “While no single piece of evidence may be sufficient, the combined 

force of many concurrent and related circumstances, each insufficient in itself, may lead a 

reasonable mind irresistibly to a conclusion.” Emerson v. Commonwealth, 43 Va. App. 263, 

277, 597 S.E.2d 242, 249 (2002) (quoting Derr v. Commonwealth, 242 Va. 413, 425, 410 S.E.2d 

662, 669 (1991)) (internal quotation marks omitted). Specifically, the evidence supporting the 

circuit court’s conclusion that Hedgpeth was intoxicated in the light most favorable to the 

Commonwealth as the prevailing party below is that while Hedgpeth was driving, Hedgpeth and 

his companion were both drinking alcoholic beverages. Hedgpeth either failed to notice or 

deliberately disregarded two posted and clearly visible traffic signs at an intersection where he 

made an illegal right turn. A strong odor of alcohol emanated from Hedgpeth’s person, and 

Hedgpeth’s speech was slurred. Hedgpeth was uncooperative with Officer Mizelle’s attempts to 

conduct a field sobriety test and fled from Officer Mizelle immediately after Mizelle’s second 

request that Hedgpeth do so. Based on this evidence, we cannot say that no rational factfinder 

could reach the same conclusion as the circuit court did in this matter. 
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Hedgpeth, in his second assignment of error, argues that the evidence was insufficient to 

support his conviction for driving on a revoked license, in violation of Code § 46.2-391(D)(2). 

Code § 46.2-391(D)(2) provides, in relevant part, that any person who is convicted of 

violating Code § 18.2-266, after previously having had his or her driver’s license revoked, is 

guilty of a felony. See Code § 46.2-391(D)(2). Hedgpeth does not challenge the statute’s 

validity. Rather, Hedgpeth indicates that Code § 46.2-391(D)(1) states “[i]f such driving does 

not of itself endanger the life, limb, or property of another, such person shall be guilty of a Class 

1 misdemeanor.” Code § 46.2-391(D)(1). And, because Hedgpeth argues that the evidence was 

insufficient for the circuit court to find that he was driving while intoxicated he claims that the 

circuit court erred in failing to reduce the driving revoked charge to a misdemeanor. Stated 

another way, Hedgpeth argues that his driving while revoked charge “should have been reduced 

to a misdemeanor, as there is insufficient evidence to prove the enhancements necessary for a 

felony charge.” 

Despite Hedgpeth’s assertions that his conduct did not endanger life, limb, or property of 

another, the law recognizes that “the act of driving while intoxicated . . . is inherently 

dangerous.” Davis v. Commonwealth, 12 Va. App. 408, 413, 404 S.E.2d 377, 380 (1991). “A 

drunken driver has dulled his perceptions, blunted his skill, and slowed his reflexes in advance.” 

Wyatt v. Commonwealth, 47 Va. App. 411, 418, 624 S.E.2d 118, 122 (2006) (quoting Essex v. 

Commonwealth, 228 Va. 273, 283, 322 S.E.2d 216, 221 (1984)). Further, the predominant 

purpose of any drunk driving statute is to protect innocent people from the devastating harm so 

easily caused by an intoxicated driver.2 See, e.g, Gallagher v. Commonwealth, 205 Va. 666, 139 

S.E.2d 37 (1964). 

 2

 Hedgpeth also posed a danger to other drivers because his driver’s license was revoked. 

As previously noted by this Court, “the purpose of revoking a driver’s license is not to punish the 
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At trial, Hedgpeth stipulated to the authenticity of his Department of Motor Vehicles 

(“DMV”) transcript showing that his driver’s license was revoked as a result of a second offense 

for driving while intoxicated. Hedgpeth did not object to the admission of his DMV transcript or 

prior conviction orders. Further, Hedgpeth stipulated that he was driving when Officer Mizelle 

initiated the traffic stop on March 12, 2016. Therefore, the only factual issue left for the circuit 

court’s determination was whether Hedgpeth drove while intoxicated, in violation of Code 

§ 18.2-266. 

For the reasons stated above, the circuit court did not err in finding that Hedgpeth was 

guilty of driving while intoxicated, in violation of Code § 18.2-266. It follows that the elements 

of Code § 46.2-391(D)(2) were satisfied, and the circuit court did not err in concluding that the 

evidence was sufficient to prove that Hedgpeth was guilty of felony driving on a revoked license. 

For the foregoing reasons, the judgment of the circuit court is affirmed. 

Affirmed. 

 

offender but to remove from the highways an operator who is a potential danger to other users.” 

Ingram v. Commonwealth, 29 Va. App. 759, 763, 514 S.E.2d 792, 794 (1999).