An officer responding to a call about an erratic driver, who approached the driver identified by the caller after the driver had exited from his parked car, did not seize the driver when he asked to see his driver’s license, and when the officer smelled alcohol and saw defendant struggling with balance, the officer had reasonable suspicion to further investigate the possible DUI; the Court of Appeals affirms defendant’s DUI conviction.
The circuit court ruled that based on the totality of the circumstances that the encounter began as a consensual one and the officer developed reasonable, articulable suspicion to justify a brief investigative detention.
On appeal, defendant contends he was seized when the officer asked to see his driver’s license and “did not return it to him.” Controlling authority establishes that the officer’s request for and receipt of the driver’s license was not a seizure. The Supreme Court of Virginia considered this question in Branham v. Commonwealth, 283 Va. 273 (2012). In that case, and in this one, the defendant was not required by law to surrender his license because when the officer requested it, defendant was not the “operator of a motor vehicle” who had received a signal to stop from a law-enforcement officer. Instead, the encounter began in a consensual fashion when the lone officer simply asked defendant, who was sitting on a bench, if he would “mind coming with me so we can get away from this entrance” and defendant “agreed” to go with him.
The record evidence further supports the circuit court’s findings that the officer’s exchange with defendant about his driver’s license was similarly a request to which defendant agreed. He was the only police officer on the scene at that time, and the circuit court expressly found that his testimony was credible. The officer testified that he did not activate the lights on his police car. No evidence indicated the officer raised his voice, touched defendant, displayed his weapon or indicated in any way that defendant’s compliance with his request was required. Under these facts, the request for and receipt of defendant’s license did not convert the consensual encounter into a seizure.
As soon as the officer detected the odor of alcohol and saw defendant having problems with balance, observations that he made simultaneously with the license request, the officer had reasonable suspicion that defendant had been driving under the influence of alcohol. The officer’s own observations, along with the tip from the concerned citizen, who reported that defendant was “all over the road” and “running off the road,” provided reasonable suspicion that defendant had been driving under the influence of alcohol.
DUI conviction affirmed.
Medvedev v. Henrico County (Decker) No. 0930-16-2, July 18, 2017; Henrico County Cir.Ct. (Harris) David B. Hargett for appellant; Jeromy R. Lewis, Ass’t Comm. Att’y, for appellee. VLW 017-7-161(UP), 12 pp.