COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons and Frank
Argued at Chesapeake, Virginia
KENNETH ALEXANDER REYNOLDS
OPINION BY
v. Record No. 0549-99-1 JUDGE ROBERT P. FRANK
FEBRUARY 29, 2000
CITY OF VIRGINIA BEACH
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
Andrew G. Wiggin (Donald E. Lee, Jr. and
Associates, on brief), for appellant.
Teresa N. McCrimmon (Leslie L. Lilley, City
Attorney; Kathy Dillon Rountree, Assistant
City Attorney, on brief), for appellee.
Kenneth Reynolds (appellant) was convicted of driving a
motor vehicle while under the influence of alcohol in violation
of Virginia Beach Code § 21-336. On appeal, appellant contends
that in order to be found guilty under Virginia Beach Code
§ 21-336, he must have driven or operated the vehicle on a
highway. 1 We disagree and affirm the conviction.
The Code of Virginia, § 18.2-266 reads in pertinent part,
It shall be unlawful for any person to
drive or operate any motor vehicle, engine
or train [while under the influence] to a
degree which impairs his ability to drive or
operate any motor vehicle, engine or train
safely . . . .
1
At trial, appellant's counsel admitted appellant was
operating the vehicle.
For the purposes of this section, the
term "motor vehicle" includes mopeds, while
operated on the public highways of this
Commonwealth.
Additionally, the Code of the City of Virginia Beach
§ 21-336 states:
(a) No person shall drive or operate in
the city any automobile or other motor
vehicle, engine or train [while under the
influence] to a degree which impairs his
ability to drive or operate any motor
vehicle, engine or train safely . . . .
(b) For the purposes of this section,
the term "motor vehicle" includes mopeds
while operated on the public highways of the
city.
The issue raised by appellant was resolved as early as
1961. The Virginia Supreme Court, in Valentine v. Brunswick
County, 202 Va. 696, 698-99, 119 S.E.2d 486, 487-88 (1961), made
the following observation,
[i]t has been generally held that an
ordinance or statute which provides that no
person shall drive or operate a motor
vehicle while under the influence of
intoxicants, and is silent as to the place
where the offense may be committed, does not
require as an element of the offense that
the driving or operating shall be on a
public highway . . . .
The county ordinance is clear,
unambiguous and means what it says. It
applies to anyone driving or operating a
motor vehicle, engine or train while under
the influence of intoxicants anywhere in the
county of Brunswick, whether on a public
highway or private property. It does not
specify that such driving or operating must
occur on a highway.
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In support of his argument that the offense must occur on a
highway, appellant cites Stevenson v. City of Falls Church, 243
Va. 434, 416 S.E.2d 435 (1992), Lyons v. City of Petersburg, 221
Va. 10, 266 S.E.2d 880 (1980), and Gallagher v. Commonwealth,
205 Va. 666, 139 S.E.2d 37 (1964). However, our review of these
cases found no support for appellant's position as they discuss
the requirement that the person charged with the offense be the
"operator" of the vehicle.
These cases refer to Code § 46.2-100 which defines operator
as one "who . . . (i) drives or is in actual physical control of
a motor vehicle on a highway . . . ." However, the definitions
in Code § 46.2-100 are expressly applicable only to Title 46.2
and do not control Title 18.2. See Code § 46.2-100. Valentine
specifically states that an ordinance regulating driving while
under the influence "is not a highway regulation and cannot be
construed as part of the general codification of the State motor
vehicle laws." Valentine, 202 Va. at 698, 119 S.E.2d at 487.
Therefore, the definition of operator pursuant to Code
§ 46.2-100 is inapplicable to this case.
Section 21-336 of the Code of the City of Virginia Beach,
like the ordinance in Valentine, is silent as to the place where
the offense may be committed except in the case of mopeds.
Appellant was behind the wheel of an automobile, not on a
moped. Like the Valentine ordinance, the Code of the City of
Virginia Beach "is clear, unambiguous and means what it says."
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It makes unlawful any operation of an automobile anywhere in the
City of Virginia Beach by anyone under the influence of
intoxicants. Appellant admitted he was operating his vehicle in
a ditch located in the City of Virginia Beach while under the
influence of alcohol. Nothing in the City ordinance exempts
appellant's conduct. The City ordinance prohibits and
criminalizes appellant's admitted actions because the actions
occurred in the City of Virginia Beach. The fact that appellant
operated the vehicle while trying to extricate it from a ditch,
off the traveled portion of the public highway, is of no
importance.
For these reasons, we affirm the judgment of the trial
court.
Affirmed.
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