Opinion
Record No. 1615-01-2.
July 2, 2002.
Appeal from the Circuit Court of the City of Richmond, Walter W. Stout, III, Judge.
Gregory W. Franklin, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.
Present: Judges Benton, Willis and Senior Judge Hodges.
MEMORANDUM OPINION
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Christopher Harris was convicted in a bench trial of driving without a license, in violation of Code § 46.2-300. On appeal, he contends that the summons upon which he was tried was insufficient to present the charge for trial. Harris argues that the arresting officer was required to obtain a warrant because the offense was a misdemeanor not committed in the officer's presence. For the following reasons, we affirm the judgment of the trial court.
I. BACKGROUND
On December 13, 1999, Officer Josh Linger of the Richmond Police Department came upon Harris' car parked in the travel lane on Marshall Street in front of Singer Hall on the Virginia Commonwealth University/Medical College of Virginia campus. Marshall Street is a one-lane street and Harris' car was obstructing traffic. The car was unoccupied, but its hazard lights were on.
Harris came out of Singer Hall, and Officer Linger asked to see his driver's license. Officer Linger ran a check and determined that Harris' license was suspended. In addition, Officer Linger observed on the car a state vehicle inspection rejection sticker noting defective brakes.
Harris admitted that he knew the car had failed inspection, but denied knowing about the license suspension. He told Officer Linger he drove the car for work, making deliveries, and that he had made a delivery in Singer Hall. Officer Linger issued Harris a summons for driving his car on a suspended license in violation of Code § 46.2-301.
The district court convicted Harris of driving a motor vehicle without a license, in violation of Code § 46.2-300. Harris appealed to the trial court.
Upon the conclusion of the evidence in his bench trial, Harris moved to strike the charge, arguing that Code § 19.2-81 required Officer Linger to obtain a warrant to charge a misdemeanor offense not committed in his presence. The trial court denied the motion and convicted Harris under the summons.
II. ANALYSIS
It is settled that unless the arrest is one within the various statutory exceptions to the general rule, a police officer may not arrest a misdemeanant without a warrant except when an officer has personal knowledge acquired by his personal senses that an offense was committed in his presence. See Code § 19.2-81. An offense is committed within the presence of an officer, within the meaning of this rule, when he has direct personal knowledge through his sight, hearing, or other senses that it is then and there being committed.
Durant v. City of Suffolk, 4 Va. App. 445, 447, 358 S.E.2d 732, 733 (1987). Although the exceptions to the warrant requirement listed in Code § 19.2-81 are inapplicable to this case, we conclude that Officer Linger was not required to obtain a warrant because the offense was committed in his presence.
Harris argues that his misdemeanor offense of driving without an operator's license ended when he stopped driving the car and left it on Marshall Street. Therefore, he argues, his conviction should be reversed. See Davis v. Commonwealth, 17 Va. App. 666, 440 S.E.2d 426 (1994). Harris' reliance on Davis is misplaced.
In Davis, a Virginia state trooper found an unoccupied car stopped with all four wheels on the paved surface of the road. One tire was flat. Because the car was in a no passing zone on a two-lane road and presented a highway hazard, the trooper called a tow truck to remove it. Fifteen minutes later, Davis and two other men drove up.
Davis admitted he had been driving the disabled car. He could not produce a driver's license. He provided his social security number and the trooper ran a criminal history check, which disclosed that Davis was driving on a suspended license. The trooper arrested him on two summonses without obtaining warrants.
We reversed Davis' conviction, holding:
[t]he offense of operating a motor vehicle on a suspended license ended when the appellant stopped driving the car and did not continue thereafter. Although the trooper developed evidence of the commission of that offense, no part of the offense was committed in his presence. Therefore, he lacked authority to arrest the appellant on that charge without a warrant. The arrest was unlawful, and the summons issued on that charge was not a valid process to present that charge for trial. The trial court erred in trying that charge without a valid process.
Id. at 672, 440 S.E.2d at 430.
Unlike the situation in Davis, Harris' offense involved no termination of his operation of his car. In Davis, when the vehicle's tire went flat, Davis parked in the roadway. He turned off the mechanical and electrical systems and left to seek assistance. This took, at a minimum, fifteen minutes. Turning off the mechanical and electrical systems of the car, coupled with Davis' departure and the time lapse, terminated his operation of his car. This occurred prior to the trooper's arrival.
Here, however, Harris stopped his car in the travel portion of the road, turned on his hazard lights, ran into Singer Hall to make a delivery, and returned to his car to continue his deliveries. He then encountered Officer Linger. This involved no termination of the operation of the vehicle, such as parking the car. While there was a brief interruption in his actually moving the car, Harris' actions were all part of an ongoing operation of the car for the purpose of making deliveries.
That Harris was operating his car without a license in the presence of Officer Linger is further supported by his operation of the car's hazard lights. The Supreme Court has broadly interpreted the term "operating."
We pointed out that "driving" an automobile means putting it in motion but that "operating" has a broader meaning. "Operating" 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.
Williams v. City of Petersburg, 216 Va. 297, 300, 217 S.E.2d 893, 896 (1975).
The judgment of the trial court is affirmed.
Affirmed.
The evidence in this case proved Christopher E. Harris had previously driven the car, engaged the emergency flashers, and stopped the car on the street. The police officer did not observe Harris perform any of those activities and did not see him in the car. These facts cannot be distinguished in any material way from those in Davis v. Commonwealth, 17 Va. App. 666, 440 S.E.2d 426 (1994). There, the person who admitted previously operating the car, which was left on the paved surface of the road, was not operating it in the officer's presence. Id. at 668, 440 at 428. We held as follows:
The offense of operating a motor vehicle on a suspended license ended when the appellant stopped driving the car and did not continue thereafter. Although the trooper developed evidence of the commission of that offense, no part of the offense was committed in his presence. Therefore, he lacked authority to arrest the appellant on that charge without a warrant. The arrest was unlawful, and the summons issued on that charge was not a valid process to present that charge for trial. The trial court erred in trying that charge without a valid process.
Id. at 672, 440 S.E.2d at 430.
Likewise, the evidence resembles the evidence in Overbee v. Commonwealth, 227 Va. 238, 315 S.E.2d 242 (1984), where the Supreme Court held as follows:
In the present case, . . . Overbee was not in his vehicle when the officer found him. The engine was not running; the ignition key had been removed. Overbee's possession of the keys may have given him the means of effecting control over the truck, but he cannot be said to have been in actual physical control of the vehicle when he was standing in front of it on the highway. We hold that Overbee was not operating his truck when Trooper Lacey approached and arrested him.
Id. at 243, 315 S.E.2d at 244.
Absent proof that the motor of the car was activated, the evidence that the emergency flashers were blinking does not prove the car was then being operated. Indeed, in Overbee, Overbee's presence at the front of the truck where the hood of the truck had been opened and was up, was not proof he was operating the truck. 227 Va. 238, 240-41, 315 S.E.2d at 243. Thus, unlike in Williams v. Commonwealth, 216 Va. 297, 217 S.E.2d 893 (1975), where the "motor of the car was running" and "the defendant made a 'motion' to the gearshift" before he "cut off" the motor, id. at 301, 217 S.E.2d 896, no evidence proved that Harris was "engag[ing] the machinery of the vehicle which alone, or in sequence, would have activated its motive power." Id. See also Stevenson v. City of Falls Church, 243 Va. 434, 438, 416 S.E.2d 435, 438 (1992) (holding that "[b]ecause the presence of the key in the ignition switch in the off position did not engage the mechanical or electrical equipment of Stevenson's car, Stevenson [who was slumped behind the steering wheel] did not "drive or operate" the car within the meaning of the statutes").
For these reasons, I would hold that no evidence proved Harris was operating the car. As in Davis, I would reverse the conviction and dismiss the summons.