COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Bray
Argued at Richmond, Virginia
LINDA EUGENE HALL
OPINION
v. Record No. 1782-96-2 BY JUDGE JOSEPH E. BAKER
AUGUST 5, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
James A. Luke, Judge
James M. Goff, II, for appellant.
Margaret Ann B. Walker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Linda Eugene Hall (appellant) appeals from her bench trial
conviction by the Circuit Court of the City of Hopewell for
violation of Code § 46.2-852 1 (reckless driving). The sole issue
presented by this appeal is whether the evidence is sufficient to
prove beyond a reasonable doubt that appellant drove a vehicle
recklessly on a highway in violation of Code § 46.2-852. We find
that the evidence is insufficient and reverse.
Code § 46.2-852 provides:
Reckless driving; general rule. --
Irrespective of the maximum speeds permitted
by law, any person who drives a vehicle on
any highway recklessly or at a speed or in a
manner so as to endanger the life, limb, or
property of any person shall be guilty of
reckless driving.
1
Although the record contains two references to Code
§ 46.2-853, the parties agree that appellant was convicted of
violating Code § 46.2-852. Thus, our inquiry here is focused upon
the application and interpretation of Code § 46.2-852.
Upon familiar principles, we view the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. Martin v. Commonwealth, 4
Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). On August 28,
1995, Hopewell Police Officer Daniel Pisarck (Pisarck) was
informed of "a possible broken down vehicle" near the
intersection of 6th Street and Route 10 and proceeded to
determine the reason for the stopped vehicle. Pisarck testified
that at approximately 11:40 p.m., he arrived at the designated
location and found appellant's car stopped in the lane of travel
2
on North 6th Avenue. He said that the operator was "passed out"
behind the wheel and that appellant's car was situated in a
"heavily travelled area," particularly at that time of night.
Pisarck found that the car's ignition switch and headlights were
on, and its battery and alternator indicator lights were
illuminated on the instrument panel. Pisarck opined that
appellant's car was a traffic hazard which posed a threat to
appellant's safety and to the safety of other motorists.
However, Pisarck never saw the car in motion prior to or during
his investigation. Pisarck confirmed that he had not observed
appellant driving the vehicle.
Pisarck tapped on the driver's side window with his
flashlight and shined the light in appellant's face attempting to
2
Pisarck did not confirm whether appellant had "passed out"
from an illness or had merely fallen asleep and appeared to
surmise that it was one or the other.
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wake her. When she awoke, appellant told him she was "headed
home to Chesterfield." Pisarck noted that the direction of her
vehicle was such that she was really "coming from Chesterfield."
Pisarck noticed a strong odor of alcohol escaping from the
vehicle and discovered two open alcoholic beverage containers
therein. Appellant admitted she had been drinking. Her speech
was slurred and she was unsteady on her feet. Pisarck arrested
appellant for driving while intoxicated. Appellant's certificate
of breath analysis showed an alcohol content of ".17 grams per
210 liters of breath."
For reasons not disclosed in the record, the prosecutor
elected not to proceed on the charge for which appellant was
arrested and amended the charge to reckless driving. To support
a conviction for reckless driving in violation of Code
§ 46.2-852, the Commonwealth must prove beyond a reasonable doubt
that the accused drove the vehicle in a reckless manner "so as to
endanger the life, limb, or property" of another.
The Commonwealth relies upon Kennedy v. Commonwealth, 1 Va.
App. 469, 339 S.E.2d 905 (1986), to support appellant's
conviction. Kennedy and his family had been on the road for
eight hours when Kennedy ran his van off of the road into a
wooded median strip. Id. at 470-71, 339 S.E.2d at 906. This
Court affirmed Kennedy's conviction even though no eyewitness
testimony proved Kennedy drove in a reckless manner. The Court
in Kennedy stated that the circumstances of the accident were
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such as to give rise to an inference that the car had been driven
in a reckless manner in violation of the Code. Id. at 472, 339
S.E.2d at 907.
The circumstances in which Pisarck found appellant's car
were such as to give rise to an inference that appellant drove
her car to the location where Pisarck found her. In fact, we
have held in similar circumstances that a defendant could be
convicted of driving or operating a motor vehicle while
intoxicated. See Propst v. Commonwealth, 24 Va. App. 791, 485
S.E.2d 657 (1997). However, the circumstances in appellant's
case do not give rise to an inference that she drove her car in a
reckless manner. 3 See City of Baton Rouge v. Copley, 372 So.2d
1215 (1979); Jenson v. Fletcher, 101 N.Y.S.2d 75 (1950).
In Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628,
630 (1970), the Court said:
The word "recklessly" as used in the statute
imparts a disregard by the driver of a motor
vehicle for the consequences of his act and
an indifference to the safety of life, limb
or property . . . .
The essence of the offense of reckless
driving lies not in the act of operating a
vehicle, but in the manner and circumstances
of its operation.
3
"[W]hile evidence of intoxication is a factor that might bear
upon proof of dangerous or reckless driving in a given case, it
does not, of itself, prove reckless driving." Bishop v.
Commonwealth, 20 Va. App. 206, 210, 455 S.E.2d 765, 767 (1995).
"'One may be both drunk and reckless. He may be reckless though
not drunk; he may even be a total abstainer, and he may be under
the influence of intoxicants and yet drive carefully.'" Id.
(quoting Spickard v. City of Lynchburg, 174 Va. 502, 504-505, 6
S.E.2d 610, 611 (1940)).
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We hold that under the facts shown by this record, the
Commonwealth has failed to prove beyond a reasonable doubt that
appellant was guilty of reckless driving in violation of Code
§ 46.2-852.
Accordingly, the judgment of the trial court is reversed and
the case is dismissed.
Reversed and dismissed.
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