Summary
deciding that the defendant was in actual physical control of the vehicle even though he was asleep across the front seat and the motor was not running, because the keys were in the ignition turned to "on" and the transmission was in "drive"
Summary of this case from U.S. v. StephensonOpinion
Record No. 1222-92-1
Decided: May 24, 1994
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND COUNTY OF JAMES CITY, William L. Person, Jr., Judge
Affirmed.
C. Thomas Turbeville (D.R. Dansby, Ltd., on briefs), for appellant.
Janet F. Rosser, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Baker, Benton and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Roderick Lee Rivers (defendant) was convicted in a bench trial of driving under the influence of alcohol in violation of Code Sec. 18.2-266. On appeal, he complains that the evidence is insufficient to support the conviction. We disagree and affirm the judgment of the trial court.
The parties are fully conversant with the record, and this memorandum opinion recites only those facts necessary to a disposition of the issue on appeal.
Code Sec. 18.2-266 makes it unlawful "for any person to drive or operate any motor vehicle . . . while such person is under the influence of alcohol" (emphasis added). Though "operate" is not defined within the statute, an "operator" is "[any] person who . . . drives or is in actual physical control of a motor vehicle on a highway," according to Code Sec. 46.2-100.
In Stevenson v. City of Falls Church, 243 Va. 434, 416 S.E.2d 435 (1992), the Supreme Court reaffirmed its earlier holdings that "a vehicle occupant was in 'actual physical control' of the vehicle within the meaning of [Code Sec. 46.2-100] when he was seated behind the steering wheel and performed certain acts." Id. at 437, 416 S.E.2d at 437. The Court explained that
Williams v. City of Petersburg, 216 Va. 297, 301, 217 S.E.2d 893, 896 (1975) (defendant was "slumped over" in vehicle with engine running and made a "motion" to gearshift when "aroused" by police); Nicolls v. Commonwealth, 212 Va. 257, 258, 184 S.E.2d 9, 10 (1971) (defendant was " 'slumped' over" in vehicle with headlights burning, heater and engine running, but transmission was inoperable); and Gallagher v. Commonwealth, 205 Va. 666, 667, 139 S.E.2d 37, 38 (1964) (defendant was accelerating engine, with car in gear but immobile in ditch).
"operating" a vehicle within the proscription of the drunk driving statute "not only includes the process of moving the vehicle from one place to another, but also includes starting the engine, or manipulating the mechanical or electrical equipment of the vehicle without actually putting the car in motion. It means engaging the machinery of the vehicle which alone, or in sequence, will activate the motive power of the vehicle."
Id. at 438, 416 S.E.2d at 438 (quoting Williams, 216 Va. at 300, 217 S.E.2d at 896).
Here, the evidence is uncontroverted that Officer Ronald Dornbush of the Williamsburg Police Department discovered an automobile "stopped in the middle of Penniman Road" shortly after 1:00 a.m. Defendant, the sole occupant of the locked vehicle, was asleep, "slumped across the front seat with his head on the passenger side [and] his lower torso in the seat behind the steering wheel." Though the motor was not running and the "vehicle's lights were off," the key was in the ignition, turned to the "on" position, and the "transmission mechanism" was in "drive." Defendant stipulated that he was intoxicated at the time Officer Dornbush discovered him in the automobile.
These facts clearly distinguish this case from Stevenson. There, "[b]ecause the presence of the key in the ignition switch in the off position did not engage the mechanical or electrical equipment of [defendant's] car, [defendant] did not 'drive or operate' the car within the meaning of the statute." Stevenson, 243 Va. at 438, 416 S.E.2d at 438 (emphasis added).
These circumstances support the inference that defendant, while seated behind the wheel, had "manipulat[ed] the mechanical or electrical equipment of the vehicle without actually putting the car in motion" and was, thus, in actual physical control of the vehicle. Williams, 216 Va. at 300, 217 S.E.2d at 896. Accordingly, the evidence was sufficient to prove that defendant operated a motor vehicle while under the influence of alcohol as proscribed by Code Sec. 18.2-266, and the conviction is affirmed.
Affirmed.