Virginia DUI appeals to the commonwealth’s Supreme Court & Court of Appeals can hold limited promise when challenging sufficiency of the evidence to convict

Virginia DUI appeals to the commonwealth’s Supreme Court and Court of Appeals will be less promising for DWI defendants now that the Supreme Court has made clear how low is the threshold to allow a conviction for driving under the influence of alcohol and/or drugs under Virginia Code § 18.2-266.  Richerson v. Commonwealth of Virginia, ___ Va. ___ (April 23, 2026). As a Fairfax DUI lawyer, I know that fortunately, Virginia commonwealth’s attorneys / prosecutors cannot appeal acquittals, but a DUI conviction in a Virginia trial court is not going to get very favorable ears in the Virginia Supreme Court of Court of Appeals when challenging the sufficiency of the evidence, due to this Richerson opinion that reverses a Court of Appeals reversal of a Circuit Court DWI conviction. 

Does Richerson v. Commonwealth of Virginia mean I should throw in the towel for my Virginia DWI defense, and also expect no relief with Virginia DUI appeals?

Richerson v. Virginia does not mean to throw in the towel for your Virginia DUI defense. Richerson does mean to timely obtain a qualified Virginia DWI defense lawyer early in your trial-level prosecution, because the Virginia Court of Appeals and Supreme Court are not hospitable places for Virginia DUI appeals that challenge the sufficiency of the evidence against you after a DWI prosecution. Richerson distinguishes the Virginia Supreme Court’s cases that find insufficient grounds to convict by finding that Richerson’s trial evidence against him was sufficient to convict: “Each of these three cases have clear evidentiary gaps wherein some essential circumstance was not proven, and therefore the Commonwealth did not carry its burden of proof to establish guilt beyond a reasonable doubt by excluding certain circumstances consistent with innocence. The present case does not suffer the same evidentiary infirmity. The totality of the evidence here supports the determination that Richerson was under the influence of alcohol at the time he was operating his vehicle.” Richerson. 

Does Richerson change the Virginia DUI definition?

For Virginia DUI appeals and trials, Richerson does not change the Virginia DWI definition, which sadly is a highly diluted form of what the English language would tell us it means: “Neither chemical nor scientific evidence is required for the Commonwealth to obtain a conviction pursuant to Code § 18.2-266(ii) for driving under the influence of alcohol… Rather, to establish that an individual is in such condition to be ‘under the influence of alcohol,’ courts have relied on evidence showing that a person has ‘consumed enough alcoholic beverages to “so affect his manner, disposition, speech, muscular movement, general appearance or behavior, as to be apparent to observation.”’ Hogle v. Commonwealth, 75 Va. App. 743, 753-54 (2022)… In making this determination, ‘a factfinder considers “all of the evidence of [the defendant’s] condition at the time of the alleged offense.”‘ Hogle, 75 Va. App. at 754…” Richerson (some internal citations omitted.) What this means is that a Virginia Circuit Court judge and Virginia General District Court judge is barred from saying that Virginia Supreme Court and Court of Appeals dictate a conviction, because, at the very least, the facts of any Virginia Supreme Court or Court of Appeals case never exactly mirror the facts and circumstances of your Virginia DWI trial prosecution.

Don’t let your Virginia trial judge stand your Fifth Amendment right to remain silent on its head

The online videos are numerous of vehicle-stopped drivers who hang  — outside their car — their driver’s license and car registration on a bag tied to a string, so that they can keep their windows closed, presumably to prevent the stopping police officer / law enforcement officer (LEO) from correctly or incorrectly smelling alcohol or marijuana to backup a Virginia DUI prosecution or a prosecution for possessing contraband in the car. Of course, a Virginia LEO can get around that window-closed behavior by benefitting from the federal Supreme Court jurisprudence allowing police to order all traffic-stopped vehicle occupants to exit the car, but of course the driver still has the opportunity to lock the car doors behind him or her. The Constitution’s Fifth and Sixth Amendment rights guarantee a criminal suspect’s right to remain silent. To me, consistent with that and with Fifth and Fourteenth Amendment Constitutional Due Process is to have no obligation to assist a prosecution nor investigation and not to have that non-assistance usable against the suspect or defendant (although Virginia appellate caselaw allows field testing refusal to be considered in determining probable cause to arrest for DWI and for convicting for the same, but not as consciousness uf guilt), and, therefore, to have no obligation to roll down one’s car window without being ordered to do so, and not being obligated to look at an LEO without being ordered to do so (and I cannot think of any reason an LEO should be permitted to order a suspect to look at the police officer other than if the police officer has lawful grounds to search the suspect’s mouth for contraband, and needs to suspect to look towards the officer in order to get the item dislodged, and also to look towards a breath test operator for engaging in post-DUI arrest BAC testing, if that is needed to assure that the suspect is correctly blowing into the breathalyzer / breath testing machine). See the next paragraph about the Virginia DUI Appeals hurdle concerning averging eye contact with LEO.

How do I argue not to use eye contact aversion against me?

As to Virginia DUI appeals, Richerson at least infers it is okay to make an adverse inference from intentional aversion of eye contact with LEO not only in the DUI investigation context (where such aversion can make mouth alcohol odor less pronounced and can make it harder to see if the suspect’s eyes are bloodshot, watery or glassy, and whether one’s face is flushed) but also in any context (for instance averting eyes to hide nervousness and prevarication): “In addition to smelling alcohol on Richerson’s breath, Officer Person testified that he noticed Richerson’s ‘glassy eyes’ and ‘slurred speech’ at the beginning of their encounter. As the encounter continued, Officer Person observed Richerson ‘sweating’ and appearing confused, specifically as to why he had been pulled over and in following Officer Person’s instructions. Officer 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 Officer 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.’” Richerson (emphasis added).

Will an accomplished Virginia DUI defense lawyer distinguish the Virginia Supreme Court’s Richerson opinion on its facts?

Yes. For trials and Virginia DUI appeals, your Virginia DWI defense lawyer must do their best to distinguish the extent to which your case is unlike Richerson (for instance the extent to which you were not acting confused, nervous, sweaty, nor averting eye contact (and, if you were not making eye contact with the police, to be ready to argue about the extent to which certain cultures consider direct eye contact impolite, or the extent to which not making eye contact can have plenty to do with timidity, particularly if the incident video shows the defendant to be soft spoken.

Never give up. Never give in. That is Fairfax criminal lawyer Jonathan Katz’s call to action. Whether you are charged with a Virginia felony or misdemeanor offense, or with a Virginia DUI law violation, your only choice is to fight, fight, fight. Before hiring your Virginia criminal defense lawyer, see what their answers are to these criminal defense questions and, for DUI defense, these DWI defense questions. When these questions are asked tactfully, an attorney should welcome them. A great start to your Virginia criminal defense can begin with your free initial in-person strictly confidential consultation with Jon Katz, by contacting Jon’s assistants at 703-383-1100, Info@KatzJustice.com and (text) 571-406-7268.