JUDGE JAMES W. BENTON, JR.
Brett Nelson Mitchell was convicted of driving while under the influence of alcohol. He contends that the trial judge erred (1) in admitting the hospital blood analysis test without a proper foundation, (2) in allowing a physician to render a hypothetical opinion, and (3) in finding the evidence sufficient to prove the elements of the offense. We reverse the conviction because the evidence was insufficient to prove Mitchell was intoxicated when he drove.
Viewed in the light most favorable to the Commonwealth, the party that prevailed at trial, Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975), the evidence proved that between 11:45 p.m. and 11:50 p.m., State Trooper J.R. Lyons arrived at the scene of a one vehicle accident and saw a gaping hole in the truck's windshield. The hole was surrounded by hair and blood. It appeared to Lyons that someone had been thrown into the windshield. When Lyons could not locate the driver of the truck, he called the local volunteer fire department and formed a search party to look for the injured occupants. They searched the area and the surrounding woods until 4:00 a.m. At 6:30 a.m., Lyons was informed that Mitchell had been admitted to a local hospital.
Lyons went to Mitchell's hospital room later that morning. Mitchell was suffering from head lacerations and a collapsed lung. Lyons noted that Mitchell was in substantial pain and was probably medicated. He also noticed that Mitchell smelled of alcohol. After Lyons read to Mitchell a statement ofMiranda rights and began questioning him, Mitchell acknowledged that he had been the driver of the truck and told Lyons that the collision occurred when two deer ran in front of his truck. Mitchell admitted to drinking beer about noon the day before. However, Mitchell said he remembered absolutely nothing after the crash. Lyons questioned him further about being out all night because the temperature had been eleven degrees. Mitchell said he believed that he had wandered through the woods all night and knocked on someone's door.
Dr. Paul Southerland examined Mitchell when he arrived at the emergency room at 6:00 a.m. The doctor testified that when Mitchell arrived his face was flushed, his eyes were bloodshot, and he smelled of alcohol. The doctor also testified that Mitchell was disoriented. Mitchell told the doctor he had been in an accident the night before and did not remember passing out at the collision. He did remember waking up outside his truck and walking around. Mitchell told the doctor that he had drunk about three beers the day before. The doctor testified that Mitchell said "he didn't remember exactly when he was walking around and stuff like that after the accident" and that Mitchell "wasn't able to tell" him of his actions after the collision. Southerland ordered a blood alcohol test.
A laboratory technologist testified that the test revealed a blood alcohol content of 0.147. The technologist further testified that someone else had set the blood analysis machine, changed the diluent pack, and recalibrated the unit before the technologist analyzed Mitchell's blood sample. The technologist had performed routine quality control tests on the machine and had tested the machine the day before and the day after analyzing Mitchell's blood.
The burden was on the Commonwealth to prove beyond a reasonable doubt that Mitchell was under the influence of alcohol when the accident occurred. Fowlkes v. Commonwealth, 194 Va. 676, 678, 74 S.E.2d 683, 684 (1953). Moreover, the Commonwealth had to exclude any reasonable hypothesis that the defendant was not intoxicated at the time he drove the vehicle. Bland v. City of Richmond, 190 Va. 42, 46, 55 S.E.2d 289, 290 (1949). The Commonwealth's evidence of intoxication is based on the blood test and observations of Mitchell's behavior, all of which occurred six hours after the accident. No evidence proved Mitchell's driving behavior or his whereabouts for this six hour period after the collision. The evidence proved six hours were unaccounted for, during which time Mitchell might have happened upon a friend's house and could have easily consumed intoxicants before being taken to the hospital. See id.
In Fowlkes, the Supreme Court reversed a conviction where the police officer arrived at the scene of the accident "possibly five minutes" after the accident and observed Fowlkes staggering and under the influence of alcohol. 194 Va. at 677, 74 S.E.2d at 683. The evidence did not exclude the hypothesis that Fowlkes became intoxicated because he consumed alcohol after the accident. "[U]nless the facts and circumstances establish the time of the accident in relation to defendant's intoxication, the evidence did not prove that the defendant was under the influence of intoxicants at that time." Id. at 678, 74 S.E.2d at 684. The Commonwealth cannot rely upon suspicion, probability or conjecture to exclude the hypothesis of innocence. Coffey v. Commonwealth, 202 Va. 185, 188, 116 S.E.2d 257, 259 (1960).
No one, even Mitchell, knew where he was or what he did for six hours after the accident. The blood test, even if admissible, only proved that he was intoxicated six hours or more after the accident. In the absence of evidence concerning the defendant's actions in the six hours he was missing, it is impermissible to infer Mitchell's condition at the time of the accident based on his post-accident condition. See Fowlkes, 194 Va. at 678, 74 S.E.2d at 684. Mitchell's explanation of his actions is not inherently incredible or unbelievable. Mitchell had been severely injured and was disoriented. Both the trooper and the doctor testified that Mitchell was cooperative and candid with them. Both also testified that Mitchell could not account for his activity.
Even if the trier of fact believed that Mitchell's account of his post-accident wanderings was less than credible, the evidence in the record is insufficient to prove beyond a reasonable doubt that Mitchell was intoxicated while driving the truck.
"It is, of course, a truism of the criminal law that evidence is not sufficient to support a conviction if it engenders only a suspicion or even a probability of guilt. Conviction cannot rest upon conjecture. The evidence must be such that it excludes every reasonable hypothesis of innocence. The giving by the accused of an unclear or unreasonable or false explanation of his conduct or account of his doings are matters for the jury to consider, but they do not shift from the Commonwealth the ultimate burden of proving by the facts or the circumstances, or both, that beyond all reasonable doubt the defendant committed the crime charged against him."
It is possible, or it may be probable, that the accused was under the influence of intoxicants at the time he was operating his pickup truck, but we are unable to find in the record evidence sufficient to warrant the conclusion that beyond a reasonable doubt he was in this condition at the time he was operating the motor vehicle.
Coffey,
202 Va. at 188, 116 S.E.2d at 259 (citations omitted).
Because the evidence was insufficient to prove that Mitchell was intoxicated when he operated the motor vehicle, we reverse the conviction. We need not address the remaining issues.
Reversed and dismissed.