Opinion
Record No. 1938-91-3
December 15, 1992
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY CHARLES H. SMITH, JR., JUDGE.
Randall A. Eads, for appellant.
Kathleen B. Martin, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Chief Judge Koontz, Judges Moon and Willis.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
We reverse the driving under the influence conviction of David Wayne Kennedy because the evidence was, as a matter of law, insufficient to sustain the conviction. The Supreme Court of Virginia has held that when the evidence does not exclude as a reasonable hypothesis that a defendant became intoxicated after an automobile accident, the evidence is insufficient to prove that the defendant was intoxicated when the accident occurred.Coffey v. Commonwealth, 202 Va. 185, 187-88, 116 S.E.2d 257, 258-59 (1960); Fowlkes v. Commonwealth, 194 Va. 676, 678-79, 74 S.E.2d 683, 684 (1953); Bland v. City of Richmond, 190 Va. 42, 46, 55 S.E.2d 289, 290 (1949).
Here, the evidence merely showed that when the police officer came upon the scene of an accident, the appellant was seated near the vehicle in a state of extreme intoxication. The appellant also admitted to the police officer that he had been driving. There was no evidence, however, as to the time of the accident or the amount of time that elapsed between the accident and the arrival of the police officer. The evidence did not exclude as a reasonable hypothesis that the appellant became intoxicated after the accident. Fowlkes, 194 Va. at 679, 74 S.E.2d at 684.
Accordingly, the judgment appealed from is reversed and the warrant is dismissed.
Reversed.