Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Carrico, S.J.
DAVID L. NELSON
OPINION BY
v. Record No. 100395 SENIOR JUSTICE HARRY L. CARRICO
January 13, 2011
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal involving a charge of driving while
intoxicated, fourth offense within ten years (Code §§ 18.2-266;
18.2-270(C)(2)), 1 we decide whether the defendant, David L.
Nelson, was “operating” a motor vehicle within the meaning of
Code § 18.2-266. A jury in the Circuit Court of Fairfax County
convicted Nelson as charged and fixed his punishment at
imprisonment for one year and a fine of $1,000.00. The circuit
court imposed the sentence fixed by the jury. In an unpublished
opinion, the Court of Appeals of Virginia affirmed the judgment
of the circuit court. Nelson v. Commonwealth, Record No. 2102-
08-4 (February 2, 2010). We will affirm the judgment of the
Court of Appeals.
BACKGROUND
On September 2, 2007, Master Police Officer Timothy Carl
Benedict of the Fairfax County Police Department received a
dispatch concerning a suspicious person who had been “sleeping
1
Code § 18.2-266 prescribes the offense of driving under
the influence and Code § 18.2-270 specifies the punishment
therefor.
or possibly passed out” in a vehicle for several hours. When he
arrived on the scene, Officer Benedict observed Nelson “hunched
over” in the driver’s seat of a Jeep Grand Cherokee parked on a
cul-de-sac in a residential neighborhood. Nelson appeared to be
asleep or unconscious with a cell phone up to his ear, but he
was not speaking on the phone. Through the open window on the
driver’s side, Officer Benedict could see that the lights of the
“factory mounted radio” inside the vehicle were on and he could
hear music but the engine was not running and the gearshift
lever was in the “park” position.
Officer Benedict also observed that there was a key in the
ignition that appeared to be in the “on or accessory position.”
Officer Benedict testified that in this position “the car is not
actually running” but it enables one to “run the radio and use
things in the car” and in “[t]hat way you don’t actually have to
have the engine running but you can still use the battery.”
Officer Benedict said that to remove the key from the steering
column he had to reach through the open window and pull the key
backward “to the point where it would actually release.” This
movement, Officer Benedict said, turned off the radio.
Officer Benedict also detected the odor of alcohol coming
from the car, and he saw a 7-Eleven cup containing a clear
liquid in the center console and an empty three-gallon wine jug
“in the back seat.” Officer Benedict observed that Nelson had
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urinated on himself and had dried feces on his legs. Nelson’s
hair and clothing were disheveled and it “looked like he had
been there for a while."
Officer Benedict attempted to arouse Nelson by tapping on
the car. Nelson responded slowly and appeared to be confused.
His speech was slurred, his eyes were bloodshot, and he smelled
of alcohol, yet he denied having had anything to drink. When he
exited the car at Officer Benedict’s request, he was unable to
stand without holding onto the car, and he failed most of the
field sobriety tests he was given by Officer Benedict. When
Nelson’s blood was tested, his alcohol level was found to be
.40, or five times the legal limit. He told Officer Benedict he
was renting a room in a nearby house but was not allowed to
smoke there and had gone to his car to have a cigarette.
Nelson argues that the evidence was insufficient as a
matter of law to convict him of driving while intoxicated
because his conduct did not meet the legal standard for
operating a motor vehicle. Nelson states that he did not
operate his motor vehicle by placing the key in the ignition and
activating the radio because neither action alone, or in
sequence, will activate the motive power of the vehicle.
STANDARD OF REVIEW
Whether Nelson operated his vehicle within the meaning of
Code § 18.2-266 is a mixed question of law and fact which is
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reviewed de novo on appeal. See Carpitcher v. Commonwealth, 273
Va. 335, 343, 641 S.E.2d 486, 490-91 (2007). “[U]pon appellate
review, the evidence and all reasonable inferences flowing
therefrom must be viewed in the light most favorable to the
prevailing party in the trial court,” in this case, the
Commonwealth. See Maxwell v. Commonwealth, 275 Va. 437, 442,
657 S.E.2d 499, 502 (2008). “The judgment of the trial court is
presumed to be correct and will be reversed only upon a showing
that it is plainly wrong or without evidence to support it.”
Id. (internal quotation marks omitted).
ANALYSIS
We have previously reviewed several driving under the
influence cases presenting the question whether the defendant
was “operating” a vehicle. Convictions were upheld in the
following cases: Gallagher v. Commonwealth, 205 Va. 666, 667,
670, 139 S.E.2d 37, 37-38 (1964) (defendant found sitting at
steering wheel of car, which was stuck in a ditch with the motor
running, the car in gear, and a rear wheel spinning); Nicolls v.
Commonwealth, 212 Va. 257, 258-59, 184 S.E.2d 9, 10-11 (1971)
(defendant found slumped over steering wheel of car, which was
parked on hard surface of highway with motor running, gears
engaged, high beam lights on, and heater in operation); Williams
v. City of Petersburg, 216 Va. 297, 298, 301, 217 S.E.2d 893,
894, 896 (1975) (defendant found slumped over steering wheel of
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vehicle on a paved parking lot with motor running, headlights
not burning, car doors closed and locked); Lyons v. City of
Petersburg, 221 Va. 10, 11-13, 266 S.E.2d 880, 880-82(1980)
(defendant found seated behind steering wheel of car but made no
statement about his striking of an unoccupied parked car in the
rear and knocking it 25 to 30 feet).
We reversed convictions in the following two cases:
Overbee v. Commonwealth, 227 Va. 238, 240, 243, 245, 315 S.E.2d
242, 243-45 (1984) (defendant found standing in front of pickup
with hood up, engine not running, key not in ignition);
Stevenson v. City of Falls Church, 243 Va. 434, 438, 416 S.E.2d
435, 438 (1992).
Stevenson is the focal point of the argument of the parties
in this case. There, in the early morning hours, the defendant
was found asleep behind the steering wheel of a car located on a
convenience store parking lot. The engine and all other
mechanical and electrical parts were turned off. There was a
key in the ignition, but the arresting officer could not recall
whether the key was in the “on” or the “off” position. 243 Va.
at 435, 416 S.E.2d at 436.
We stated as follows:
In Williams, . . . we pointed out that “operating” a
vehicle within the proscription of the drunk driving
statute
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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.
. . . .
We adhere to our holding in Williams and apply it here. It
was not recalled whether the key was in the “on” or “off”
position. And, on appeal, we must assume that the key was
in the off position.
Because the presence of the key in the ignition switch
in the off position did not engage the mechanical or
electrical equipment of Stephenson’s car, Stevenson did not
“drive or operate” the car within the meaning of the
statutes that were incorporated by reference in the Falls
Church ordinance.
Id. at 438, 416 S.E.2d at 438 (emphasis and internal quotation
marks omitted).
Nelson says that Stevenson is indistinguishable and that we
must assume here, as we did there, that the ignition key in the
offending car was in the “off” position. Therefore, Nelson
continues, we must hold here that because the ignition key was
in the off position he did not engage the mechanical or
electrical equipment of his car and did not “drive or operate”
the car within the meaning of Code § 18.2-266.
We disagree that we must assume that the ignition key in
Nelson’s car was in the “off” position. Nelson states on brief
that Officer Benedict “could not recall what position the key
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was in.” This is an incorrect statement. Officer Benedict
never said he could not recall the status of the ignition key.
Rather, he stated unequivocally that the key was in the “on or
accessory” position, and his testimony left no doubt it was the
key, whether in an “on” position or an “accessory” position,
that turned on the “factory mounted radio.”
Nelson states, however, that the Commonwealth’s evidence
did not exclude the “reasonable hypothesis” that his “vehicle
could have been one of many models in which a key is not
required to activate the radio.” (Emphasis added.) Nelson also
says that the Commonwealth’s evidence “did not preclude the
possibility that Mr. Nelson’s car was one of [the] many with a
safety feature requiring the key to be turned backward from the
‘off’ position before it will release.” (Emphasis added.) But
there was no burden on the Commonwealth to negate what “could
have been” or what was a “possibility.” 2
2
Nelson says that “the Commonwealth conceded in closing
argument that its evidence did not prove the position of the
key.” The following is the purported concession:
“It makes a big difference between the accessory of the jeep,
and kind of glibly says that, gee, you can’t move the gear
shift unless it’s in whatever. We don’t know that about this
particular jeep. We don’t know that.”
The Commonwealth made this purported concession in response to
Nelson’s assertion that no individual can move a car with the
key in the accessory position because one “can’t even move the
gear shift from the accessory position.” This purported
concession does not change the outcome of this case.
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Nelson argues that “[e]ven if this Court finds that the key
was not in the ‘off’ position, Mr. Nelson still was not
operating a motor vehicle.” “There is no meaningful
distinction,” Nelson says, “between the act of putting the key
into the ignition slot and the act of turning it forward or
backward to operate the accessories.” “In either case,” Nelson
continues, “there is no nexus between Mr. Nelson’s action and
the motive power of the vehicle because activating the radio is
not part of the sequence of activating the motive power of the
vehicle.” Nelson concludes that “[b]y holding in Stevenson that
putting a key in the ignition is not operating, [this Court]
acknowledged that putting the key in the ignition is not an
action which could alone or in sequence activate the motive
power of the vehicle.”
We have read and re-read the page of Stevenson cited by
Nelson, 243 Va. at 437, 416 S.E.2d at 437, and have been unable
to find where we held that “putting a key in the ignition is not
operating” or where we said anything else amounting to an
acknowledgement that “putting the key in the ignition is not an
action which could alone or in sequence activate the motive
power of the vehicle.” Indeed, the words “motive power” do not
appear anywhere on that page. They appear on the following page
in the definitional paragraph quoting Williams, noted above,
which does not contain any kind of acknowledgement on our part.
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In any event, Stevenson does not support Nelson’s claim
that “activating the radio is not part of the sequence of
activating the motive power of the vehicle.” The question
whether the motive power was activated was not reached in
Stevenson. The conviction was reversed solely because the key
was in the “off” position and therefore “did not engage the
mechanical or electrical equipment of Stevenson’s car [and]
Stevenson did not ‘drive or operate’ the car within the meaning
of the statutes that were incorporated by reference in the Falls
Church ordinance.” 243 Va. at 438, 416 S.E.2d at 438.
Here, the key was not in the “off” position but in an “on
or accessory position.” Nelson turned on the radio by placing
the key in the latter position, and his action constituted
“manipulating the . . . electrical equipment of the vehicle.”
Operating” means “engaging the machinery of the vehicle which
alone, or in sequence, will activate the motive power of the
vehicle.” Id. (Emphasis added.) Manipulating the electrical
equipment was one step between the “off” position and the point
at which the motive power would be activated. While Nelson’s
action in turning the key to the “on” or “accessory” position of
the ignition did not alone activate the motive power, it was an
action taken “in sequence” up to the point of activation, making
him the operator of the vehicle within the meaning of Code
§ 18.2-266.
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CONCLUSION
For the reasons assigned, we will affirm the judgment of
the Court of Appeals.
Affirmed.
JUSTICE KOONTZ, dissenting.
I respectfully dissent. Although the issue of what is
contemplated by the term to “operate” a vehicle contained in
Code § 18.2-266 and its predecessors has vexed the courts of
this Commonwealth for more than forty-five years, in my view,
the resolution of that issue could not be more straightforward.
As was observed by the dissent in Williams v. City of
Petersburg, the provision now codified as Code § 18.2-266 is
“designed to prohibit and punish a person for ‘operating,’ not
for ‘occupying,’ a vehicle while under the influence of
alcohol.” 216 Va. 297, 303, 217 S.E.2d 893, 898 (1975)
(Harrison, J., joined by Cochran and Poff, JJ., dissenting).
The truth of that observation is unassailable. Today, however,
the majority of this Court permits the defendant to be convicted
of violating Code § 18.2-266 where the defendant, while
occupying the vehicle and under the influence of alcohol, was
merely listening to the vehicle’s radio.
Code § 18.2-266, in pertinent part, provides that: “[i]t
shall be unlawful for any person to drive or operate any motor
vehicle . . . while such person is under the influence of
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alcohol.” (Emphasis added.) The term “drive” has an obvious
meaning that includes putting the vehicle in motion. The term
“operate” has a less obvious meaning and, consequently, has been
the subject of a number of our prior cases. The majority
opinion reviews those cases in which, for purposes of construing
the meaning of the term “operate,” we have held under the
particular facts of each case that the defendant was operating a
vehicle while under the influence of alcohol. Significantly, in
each case the evidence established that the defendant was in the
vehicle with the motor of the vehicle running. See, e.g.,
Williams, 216 Va. at 298, 217 S.E.2d at 894; Nicolls v.
Commonwealth, 212 Va. 257, 258, 184 S.E.2d 9, 10 (1971);
Gallagher v. Commonwealth, 205 Va. 666, 667, 139 S.E.2d 37, 38
(1964).
In Williams, we concluded that “operating” a vehicle has a
broader meaning than “driving” a vehicle. We concluded that in
addition to the process of moving the vehicle from one place to
another, operating “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.” 216
Va. at 300, 217 S.E.2d at 896.
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It is the application of the last sentence of this quoted
language that subsequently was revisited in Stevenson v. City of
Falls Church, 243 Va. 434, 416 S.E.2d 435 (1992), and is the
focus of the present appeal. In Stevenson, the intoxicated
defendant was found inside a vehicle and asleep behind the
steering wheel. The key was in the ignition in the “off”
position. The motor of the vehicle was not running and all of
its other mechanical and electrical equipment were off. Id. at
435, 438, 416 S.E.2d at 436, 438. A majority of the Court held
that because the presence of the key in the ignition did not
engage the mechanical or electrical equipment of the vehicle,
the defendant did not “operate” the vehicle within the meaning
of Code § 18.2-266. Id. at 438, 416 S.E.2d at 438.
In the present case, the defendant while intoxicated was
found inside a vehicle, “hunched over” in the driver’s seat, and
either asleep or unconscious. The motor of the vehicle was not
running and the gearshift lever was in the “park position.”
However, the key to the vehicle’s ignition was in the “on or
accessory position” so as only to permit the activation of the
vehicle’s radio using the electrical power of the vehicle’s
battery. The radio was emitting music when the police
approached the vehicle.
The dispositive question in this appeal then becomes
whether these facts satisfy the test of “engaging the machinery
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of the vehicle which alone, or in sequence, will activate the
motive power of the vehicle.” The majority goes to some length
to find a distinction between the significance of a key in the
ignition in the “off” position as was deemed the fact in
Stevenson and, as here, a key in the ignition in an “on or
accessory position” that turned on the vehicle’s radio. In my
view, the majority labors to find a distinction without
significance.
Manipulating the key to the ignition of the vehicle so that
the vehicle’s radio functioned would not and could not “alone”
activate the motive power of the vehicle. Nor could that act in
sequence do so. It is a matter of common understanding and
experience that the key had to be placed in the position
engineered to activate the motive power of the vehicle rather
than the position of the key engineered to activate the
vehicle’s radio.
In short, the evidence in this case established that the
defendant while intoxicated occupied the vehicle and activated
the vehicle’s radio, but it fails to establish that he
“operated” the vehicle. Accordingly, I would reverse the Court
of Appeals judgment affirming the defendant’s conviction for
violating Code § 18.2-266 and vacate that conviction.
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