                  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.
             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."


                                 4
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



                                  5
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.




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