COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Frank and Senior Judges Hodges
Argued at Salem, Virginia
MARK ALLEN KEESEE
OPINION BY
v. Record No. 1962-98-3 JUDGE ROBERT P. FRANK
APRIL 25, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
J. Samuel Johnston, Jr., Judge
Aubrey J. Rosser, Jr., for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Mark Allen Keesee (appellant) appeals his conviction after
a bench trial of driving while under the influence of alcohol in
violation of Code § 18.2-266. On appeal, he contends the trial
court erred in finding that: 1) he was operating the vehicle
and 2) he was operating the vehicle within two hours of his
arrest. We disagree and affirm the conviction.
I. BACKGROUND
On March 28, 1997, Trooper Keith Childress of the Virginia
State Police was dispatched at 1:26 a.m. to the scene of an
accident on Route 29 in Campbell County. Childress arrived at
the scene at 1:42 a.m. and discovered a vehicle turned on its
side on the highway. Emergency workers were on the scene and
ten to fifteen cars were backed up on the highway. Childress
testified that the highway is heavily traveled, even during
nighttime hours.
Appellant was in the vehicle, and his legs were pinned
under the steering wheel and dashboard. His torso was hanging
out of the window. Appellant was conscious but was unable to
move because he was trapped inside the car.
Childress saw that the keys to the vehicle were in the
ignition and that the vehicle was in gear, held in place by a
bungee cord wrapped around the bottom of the gear shifter. One
of the vehicle's taillights was illuminated. The car's engine
was not running. Childress observed five empty beer cans in and
around the vehicle.
When Childress spoke to appellant, appellant stated that he
was headed home and he lived just up the road. Appellant was
unable to remember the details of the accident. Childress
noticed that appellant had a strong odor of alcohol on his
breath, that appellant's eyes were glassy and bloodshot, and
that appellant's speech was slurred. Appellant admitted to
Childress that he had consumed two beers earlier in the evening
and had nothing to drink after the accident occurred.
At 2:20 a.m., in the ambulance, Childress advised appellant
that he was under arrest for driving while under the influence
of alcohol. Childress also advised appellant of the state's
implied consent law when they arrived at the hospital at
3:00 a.m. At 3:56 a.m., a nurse at the hospital drew
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appellant's blood for a blood alcohol content test. Appellant
did not object to the drawing of his blood.
The trial court, by letter opinion, ruled that the results
of appellant's blood test were admissible because appellant was
operating the vehicle when Childress arrived at the scene of the
accident at 1:42 a.m.
II. ANALYSIS
"On appeal, we view the evidence in the
light most favorable to the Commonwealth,
granting to it all reasonable inferences
fairly deducible therefrom. The judgment of
a trial court sitting without a jury is
entitled to the same weight as a jury
verdict and will not be set aside unless it
appears from the evidence that the judgment
is plainly wrong or without evidence to
support it."
Wilkins v. Commonwealth, 18 Va. App. 293, 295, 443 S.E.2d 440,
442 (1994) (en banc) (quoting Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987)).
Code § 18.2-266 states, in part:
It shall be unlawful for any person to
drive or operate any motor vehicle, engine
or train (i) while such person has a blood
alcohol concentration of 0.08 percent or
more by weight by volume or 0.08 grams or
more per 210 liters of breath as indicated
by a chemical test administered as provided
in this article, (ii) while such person is
under the influence of alcohol, (iii) while
such person is under the influence of any
narcotic drug or any other self-administered
intoxicant or drug of whatsoever nature, or
any combination of such drugs, to a degree
which impairs his ability to drive or
operate any motor vehicle, engine or train
safely, or (iv) while such person is under
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the combined influence of alcohol and any
drug or drugs to a degree which impairs his
ability to drive or operate any motor
vehicle, engine or train safely. A charge
alleging a violation of this section shall
support a conviction under clauses (i),
(ii), (iii) or (iv).
Code § 46.2-100 defines an operator as one who "either (i)
drives or is in actual physical control of a motor vehicle on a
highway or (ii) is exercising control over or steering a vehicle
being towed by a motor vehicle."
Code § 18.2-268.2(A) states:
Any person, whether licensed by
Virginia or not, who operates a motor
vehicle upon a highway, as defined in
§ 46.2-100, in this Commonwealth shall be
deemed thereby, as a condition of such
operation, to have consented to have samples
of his blood, breath, or both blood and
breath taken for a chemical test to
determine the alcohol, drug, or both alcohol
and drug content of his blood, if he is
arrested for violation of § 18.2-266 or
§ 18.2-266.1 or of a similar ordinance
within two hours of the alleged offense.
We believe that this case is on point with our decision in
Propst v. Commonwealth, 24 Va. App. 791, 485 S.E.2d 657 (1997).
In Propst, the defendant was found behind the wheel of his
pickup truck, which was stopped in an intersection. See id. at
792-93, 485 S.E.2d at 658. The defendant was asleep in the
driver's seat with the seat belt fastened around him. See id.
at 793, 485 S.E.2d at 658. The truck's engine was not running,
but the key was in the ignition. See id. The dashboard lights
were illuminated as were the headlights and taillights. See id.
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The truck was in gear. See id. The defendant told the officer
that he had been "'driving around'" and was on his way home.
See id. The officer smelled an odor of alcohol on the
defendant, the defendant's face was flushed and the officer saw
beer on the floor of the truck. See id. The defendant told the
officer that he had consumed two beers earlier in the evening.
See id. We held that the evidence was sufficient to find that
the defendant was "operating" the truck within the proscription
of the drunk driving statute. See id. at 793, 485 S.E.2d at
659.
In this case, appellant argues that he was unable to
operate the vehicle because the vehicle was crashed and he was
"in an incapacitated" position. Appellant relies on Overbee v.
Commonwealth, 227 Va. 238, 315 S.E.2d 242 (1984), in support of
his argument. The defendant in Overbee, however, was standing
outside the vehicle when the officer found him. See id. at 243,
315 S.E.2d at 244. Appellant, however, was in the vehicle with
his legs pinned under the steering wheel.
In Lyons v. City of Petersburg, 221 Va. 10, 13, 266 S.E.2d
880, 881-82 (1980), the Supreme Court held that the defendant,
whose car was involved in an accident, "remained in possession
of his vehicle, and 'in actual physical control' thereof, until
he was removed from the vehicle . . . ." In Gallagher v.
Commonwealth, 205 Va. 666, 670, 139 S.E.2d 37, 40 (1964), the
Supreme Court wrote, "[T]he word 'operate' . . . is not limited
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to moving the vehicle from one place to another . . . ." We
construe this language to mean that a vehicle need not be
functional in the sense of being able to move from place to
place in order to be "operated." We, therefore, reject
appellant's argument based on Overbee.
Appellant was alone in the vehicle when Childress arrived
at the scene of the accident. The car was in gear, and the key
was in the ignition. One of the taillights was illuminated.
Appellant told Childress that he was "heading home" and that he
had consumed two beers earlier in the evening. Appellant had an
odor of alcohol on his breath, his eyes were bloodshot and
glassy, and his speech was slurred. The evidence, under Propst,
Lyons, and Gallagher, was sufficient to prove that appellant was
"operating" the vehicle when Childress arrived on the scene at
1:42 a.m. Appellant was arrested at 2:20 a.m., within two hours
of the offense, as required by Code § 18.2-268.2. Therefore,
the blood alcohol test was admissible. Accordingly, we affirm
appellant's conviction.
Affirmed.
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