                               COURT OF APPEALS OF VIRGINIA


Present: Judges Clements, Haley and Senior Judge Bumgardner
Argued by teleconference


RANDY BROWER
                                                            MEMORANDUM OPINION * BY
v.     Record No. 0437-07-4                               JUDGE RUDOLPH BUMGARDNER, III
                                                                 FEBRUARY 19, 2008
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                  Randy I. Bellows, Judge

                 Jonathan Shapiro (Law Offices of Jonathan Shapiro, P.C., on brief),
                 for appellant.

                 Richard B. Smith, Special Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Randy Brower appeals his conviction of assault and battery of a police officer, Code

§ 18.2-57. He contends there was no probable cause to arrest him for drunk in public and he had

an absolute right to resist his illegal arrest. We conclude the initial arrest was supported by

probable cause, which defendant had no right to resist.

                        When the issue on appeal is whether there is sufficient
                 evidence to support a criminal conviction, we view conflicting
                 evidence in the light most favorable to the Commonwealth.
                 However, when the issues are the lawfulness of an arrest and the
                 reasonableness of force used to resist an unlawful arrest, the
                 ultimate questions involve law and fact and are reviewed de novo
                 on appeal.

Brown v. Commonwealth, 27 Va. App. 111, 117, 497 S.E.2d 527, 530 (1998) (citations omitted).

       Officer Peter McCaughuy was driving through a shopping center parking lot when he

saw the defendant and Daniel Raskus passing a bottle back and forth. The officer suspected that

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
the bottle contained alcohol, and both the defendant and Raskus appeared to be under twenty-one

years old. When the defendant saw the officer stop his car, he wrapped the bottle in a sweatshirt

and placed it in the trunk of their vehicle. The officer smelled alcohol on both men as he

approached, and they admitted they had been drinking. They retrieved a bottle of tequila from

the trunk of their car.

        The defendant was “unsteady” on his feet, his speech was “slurred,” and his eyes were

“glassy” and “very red.” While defendant was not “falling down drunk,” he had a “glazed look

on his face,” and was “somewhat belligerent.” The officer asked the defendant and Raskus to sit

on the ground and began questioning Raskus. The defendant began “interfering” with the

officer’s questioning and instructed Raskus not to provide his social security number because the

police could steal his identity. The officer asked the defendant to be quiet several times. When

the defendant continued to interfere, the officer arrested him for being drunk in public.

        The officer handcuffed the defendant, placed him in the police cruiser, and returned to

complete interviewing Raskus. The defendant got out of the cruiser and ran away. Officers

found him a short time later in a residential area. When one of them tried to apprehend the

defendant, he swung his right fist at the officer. The handcuff, which was still on the defendant’s

right hand, cut the officer’s face. When another officer arrived, the two finally subdued the

defendant. The charge arose from that struggle.

        The defendant was arrested for being “intoxicated in public,” Code § 18.2-388.

“‘Intoxicated’ means a condition in which a person has drunk enough alcoholic beverages to

observably affect his manner, disposition, speech, muscular movement, general appearance or

behavior.” Code § 4.1-100. “Probable cause exists when the facts and circumstances within the

arresting officer’s knowledge and of which he has reasonable trustworthy information are

sufficient in themselves to warrant a man of reasonable caution in the belief that an offense had

                                               -2-
been or is being committed.” Slayton v. Commonwealth, 41 Va. App. 101, 106, 582 S.E.2d 448,

450 (2003).

       The defendant possessed a bottle of tequila and admitted he had been drinking. His eyes

were very red and glassy. He bore a glazed expression. His speech was slurred. He was

belligerent and uncooperative. He was unsteady on his feet. Those facts and circumstances

observed by the arresting officer were sufficient to permit a reasonable man to believe it was

more probable than not that the defendant was intoxicated.

       The officer recounted facts that showed alcohol had affected the defendant’s manner,

disposition, speech, muscular movement, general appearance, and behavior. Those observations

constituted probable cause to believe the defendant was intoxicated in public, Code § 18.2-388.

The arrest being lawful, the defendant had no right to resist. Polk v. Commonwealth, 4 Va. App.

590, 596, 358 S.E.2d 770, 773 (1987). Accordingly, we affirm.

                                                                                        Affirmed.




                                               -3-
