Opinion
Record No. 2292-91-3
June 22, 1993
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE CLIFFORD R. WECKSTEIN, JUDGE.
Jonathan M. Apgar (Damico Apgar, on brief), for appellant.
Linwood T. Wells, Jr., Assistant Attorney General (Mary Sue Terry, Attorney General; Virginia B. Theisen, Assistant Attorney General, on brief), for appellee.
Present: Judges Baker, Benton and Coleman.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Larry Edward Graham (appellant) appeals from a judgment of the Circuit Court of the City of Roanoke (trial court) that approved his jury trial conviction for second offense driving under the influence. He contends that the evidence was insufficient to support the conviction. In addition, he asserts that the trial court erred when it refused to require the Commonwealth to elect under which section of Code § 18.2-266 it intended to proceed, and that it improperly instructed the jury on the definition of operating a motor vehicle.
We first address the sufficiency issue. In doing so, we state the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
Early in the morning of May 26, 1991, Roanoke Police Sergeant J.R. Ratcliffe heard a radio dispatch that shots had been fired near the intersection of Second Street and Church Avenue in Roanoke. Ratcliffe immediately drove to that intersection, where he saw a pickup truck that met the description given by the dispatcher. The truck was stopped in the right turn lane. Ratcliffe parked his police car behind the truck and activated his blue light. The only occupant of the truck was appellant. As Ratcliffe approached the truck, he could hear its motor running and observed that appellant was sitting behind its wheel. When Ratcliffe arrived opposite the driver's door, the truck motor had been shut off and the keys to the ignition switch were on the dashboard.
Ratcliffe detected an odor of alcohol coming from the truck and advised appellant of his Miranda rights. When asked, appellant admitted to having had "two drinks of vodka," none after the police arrived. Ratcliffe advised appellant of his right to a breath or blood test pursuant to the implied consent laws. Appellant chose to take a blood test that subsequently revealed a .24 blood alcohol content. Appellant admitted that he thought he was legally intoxicated. The evidence supports appellant's belief.
Two police officers testified that they saw appellant behind the wheel of his stopped pickup truck, with the motor running, on a public street at an intersection in the City of Roanoke. Appellant's blood alcohol content far exceeded the minimum limit for presuming he was under the influence of alcohol. An abundance of evidence establishes that appellant was under the influence of alcohol while operating a motor vehicle.
In Nicolls v. Commonwealth, 212 Va. 257, 184 S.E.2d 9 (1971), the accused, while under the influence of alcohol, was shown to have been discovered stopped on a public street, "slumped" over the steering wheel of a car with the motor running. The accused presented evidence that the transmission of the car was in disrepair so that the vehicle could not be moved. The Court said:
In order to convict the defendant it was necessary that the Commonwealth establish two things: (1) that the defendant was operating or driving a motor vehicle, and (2) that he was under the influence of intoxicants at the time he was driving or operating it.
Id. at 258, 184 S.E.2d at 10. The Court noted that Code § 18.2-266 made it unlawful to drive or operate a motor vehicle while under the influence of alcohol and further said:
Formerly Code § 18.1-54.
In Gallagher v. Commonwealth, 205 Va. 666, 139 S.E.2d 37 (1964), we held that the meaning of the word "operate" as used in § 18.1-54 was not limited to the movement of the vehicle. We noted in Gallagher that the word "operate" was not defined in § 18.1-54, but that the word "operator" was defined in § 46.1-1(17) of the Motor Vehicle Code. There "operator" is defined, in part, as "Every person who derives [sic] or is in actual physical control of a motor vehicle . . . ." [Emphasis added] We approved this definition for the purpose of determining whether one "operates" a motor vehicle within the meaning of § 18.1-54.
We hold that under the facts proved in this case, the defendant was guilty of operating his motor vehicle while under the influence . . . .
Id. at 259, 184 S.E.2d at 11.
In the case before us, the evidence supports the jury's finding that appellant was operating a motor vehicle under the influence of alcohol. See Williams v. City of Petersburg, 216 Va. 297, 300, 217 S.E.2d 893, 896 (1975) (under similar facts, the Court said that "operating" not only includes the process of moving the vehicle from place to place, but also includes starting the engine).
This case is distinguished from Stevenson v. City of Falls Church, 243 Va. 434, 416 S.E.2d 435 (1992), in which the Court reversed a conviction for driving under the influence. InStevenson, although the defendant was intoxicated and sitting behind the wheel of a motor vehicle, the evidence disclosed that the vehicle was located on the parking lot of a 7-Eleven store, the key was in the ignition, but was in an off position, and the engine and all its mechanical and electrical parts were off. The arresting officer did not know how long the vehicle had been at that location. In this case, on the other hand, appellant was seated behind the wheel of a pickup truck, with the motor running, on a public street. Moreover, while reversing the conviction in Stevenson, the Court reaffirmed its decisions inNicolls, Gallagher and Williams, noting variously the similarities to the case before us.
Appellant further argues that Code § 18.2-266 defines several different offenses and the trial court erroneously denied his motion to require the Commonwealth to elect the subsection on which it intended to rely. We disagree. Code § 18.2-266 defines a single offense, commonly referred to as DUI, and the subsections merely set forth the means by which the offense of driving under the influence may be proved.
Lastly, appellant contends that the trial court erred when it refused two tendered instructions purporting to instruct the jury "on the definition of operating a motor vehicle." Those instructions provided:
[Instruction A]
Operating a motor vehicle means driving the car from one place to another and also includes starting the engine or using the mechanical or electrical equipment of the car which can put the car in motion.
and
[Instruction B]
THE COURT INSTRUCTS THE JURY that operating a motor vehicle 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 vehicle in motion. It means engaging the machinery of the vehicle which alone, or in sequence, will activate the motive power of the vehicle.
To prove that an accused is guilty of violating Code § 18.2-266, it is not necessary to show that the vehicle was "moved" or "driven" from one place to another. The word "operate" as used in the statute is not limited to movement of the vehicle. The prosecution need only show the accused was under the influence of alcohol, or had an excessive blood alcohol content, and while in that condition was "in actual physical control of the vehicle." See Nicolls, 212 Va. at 259, 184 S.E.2d at 11; Gallagher, 205 Va. at 670, 139 S.E.2d at 40. In Nicolls, the uncontradicted evidence showed the vehicle was under the accused's physical control but was incapable of being driven or moved from one place to another due to a defective transmission. 212 Va. at 258, 184 S.E.2d at 10. In the present case, reference to the term, "driving," or the phrase, "moving from one place to another," would have misled the jury as to the burden of proof required for conviction. The trial court did not err in refusing to grant Instructions A and B.
For the reasons stated, the judgment of the trial court is affirmed.
Affirmed.