Criminal- DUI conviction is reinstated

Where the circuit court concluded the defendant was driving under the influence, based upon an officer’s testimony and body-worn camera footage, the Court of Appeals erred when it reversed the conviction. The trial court as factfinder, not the Court of Appeals, was responsible for resolving which inferences reasonably flowed from the entirety of the evidence.

Background

Lonnie Lewis Richerson was found guilty of driving under the influence. Reversing Richerson’s conviction, the Court of Appeals opined that “not all of Officer Person’s testimony is supported by his body camera footage.”

Analysis

The Commonwealth argues that there was sufficient circumstantial evidence to support Richerson’s DUI conviction, and that there was no evidence to contradict Person’s testimony or to explain Richerson’s behavior on the body camera footage. The Commonwealth further argues that the Court of Appeals erred in finding a reasonable hypothesis of innocence that did not flow from the evidence in the record. This court  agrees.

There was no break in the sequence of events between Richerson’s driving and his encounter with Person. In other words, it was evident that Richerson was in fact the person driving when he was pulled over, and there was no period of time unaccounted for during which Richerson could have consumed alcohol after he was driving but before he encountered Person.

Thereafter, from the moment Richerson rolled down his window, Person noticed the odor of alcohol in the vehicle and on Richerson’s breath. This was the reason he gave for wanting to speak with Richerson somewhere else, presumably to confirm whether the odor was emanating from Richerson and not just the vehicle. Person testified that the odor was still present away from the vehicle.

In addition to smelling alcohol on Richerson’s breath, Person testified that he noticed Richerson’s “glassy eyes” and “slurred speech” at the beginning of their encounter. As the encounter continued, Person observed Richerson “sweating” and appearing confused, specifically as to why he had been pulled over and in following Person’s instructions.

Person also testified to Richerson’s apparent aversion to making eye contact with him. This behavior was clearly observable in the camera footage, where Richerson would alternate between looking ahead, looking down, or looking off to the side, but not once did he look directly at Person, even after a direct inquiry.

Based on the totality of these circumstances, it was permissible to infer that Richerson had consumed alcohol, and that he had done so to the point that it affected his “manner, disposition, speech, muscular movement, general appearance or behavior.” This was “apparent to observation” not only by Person, but also as reflected in the body-worn camera footage.

The Court of Appeals nonetheless focused on the part of the video that showed Richerson walking behind the vehicle “without exhibiting issues with his balance, and responding to the officers’ questions and directions in a normal manner.” This reasoning effectively views one circumstance in isolation and elevates it above the evidence as a whole. This court has rejected such an approach to appellate review. Even if Richerson displayed no observable issues with his balance walking from one end of the vehicle to another, the absence of one factor does not negate the existence of other observable factors.

The Court of Appeals perfunctorily suggested that Richerson’s behavior could be explained by being “tired or nervous.” For a hypothesis of innocence to be reasonable, it must be one that “flow[s] from the evidence itself.” Moreover, “‘the factfinder ultimately remains responsible for weighing the evidence,’ and the factfinder is the one who ‘determines which reasonable inferences should be drawn from the evidence.’”

Here, the trial court heard Person’s testimony and watched the video of the encounter. Even assuming the trial court could infer from the evidence that Richerson was nervous, nervousness does not reasonably attribute the circumstances present here to innocence, particularly the odor of alcohol on Richerson’s breath. To the contrary, nervousness could itself be a result of being pulled over for driving on a suspended license while under the influence of alcohol.

The trial court as factfinder, not the Court of Appeals, was responsible for resolving which inferences reasonably flowed from the entirety of the evidence. In doing so, it concluded that the combined effect of the circumstances observed by Person and reflected in the body-worn camera footage were consistent with Richerson driving under the influence of alcohol.

Reversed and final judgment.

Commonwealth v. Richerson, Record No. 250176, April 23, 2026 (Chafin). From the Court of Appeals of Virginia. VLW 026-6-021. 10 pp.

Full-Text Opinion

VLW 026-6-021
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