COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Overton
Argued at Norfolk, Virginia
JAMES BERNARD PROPST
OPINION
v. Record No. 0347-96-1 BY JUDGE JOSEPH E. BAKER
JUNE 3, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY
Westbrook J. Parker, Judge
Archer L. Jones, II (Jones & Jones, P.C., on
brief), for appellant.
Kimberley A. Whittle, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
James Bernard Propst (appellant) appeals his bench trial
conviction for driving or operating a motor vehicle while
intoxicated in violation of Code § 18.2-266. Appellant contends
that the Commonwealth failed to prove that he was "operating" a
motor vehicle while intoxicated and that his conviction should
therefore be reversed. We disagree and affirm appellant's
conviction.
On appeal, 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). Viewed accordingly, the
evidence establishes that on July 25, 1995, at approximately 9:32
p.m., Trooper Scott Burgett was dispatched to investigate a
vehicle stopped in the intersection of Routes 665 and 711. He
arrived at the intersection and found appellant's pickup truck
stopped in the roadway. The truck was situated in the travel
lane of Route 665. The truck's hood was protruding into the
intersection beyond the plane of a stop sign which controlled
traffic entering Route 711 from Route 665. The truck's
headlights and tail lights were on.
Burgett approached the truck and found appellant asleep in
the driver's seat with his seat belt fastened and the driver's
side window down. The truck's engine was not running. Burgett
noticed that the dashboard lights were illuminated, including two
red warning lights. The key was in the ignition, and the manual
gearshift was in either first or third gear. Burgett, however,
said that he could not state with certainty that the ignition
switch was in the on position. Burgett found a pizza on the
front seat and beer on the floor of the truck.
Burgett woke appellant. Appellant stated that he had
experienced some problems with his wife and that he had been
"driving around." Appellant told Burgett he had stopped for a
pizza and was on his way home. Burgett smelled a strong odor of
alcohol on appellant. Appellant's face was flushed, his eyes
were bloodshot, and his clothing was very disheveled. Burgett
asked appellant to perform several field sobriety tests. He
failed all of them. Appellant admitted he had consumed two beers
about two hours earlier.
Burgett placed appellant under arrest for driving under the
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influence and transported him to the Smithfield Police Department
for a breath analysis. Appellant's blood alcohol content was
0.18 percent at 11:12 p.m., more than twice the legal limit.
Appellant asserts that the Commonwealth failed to prove his
guilt beyond a reasonable doubt because the evidence did not show
that the ignition of his truck was "on" or that the motor was
running. Therefore, he argues that the evidence is insufficient
to convict him. We disagree.
"Operator" is defined in Code § 46.2-100 to include "[e]very
person who drives or is in actual physical control of a motor
vehicle on a highway" or who "is exercising control over or
steering a vehicle being towed by a motor vehicle." Contrary to
appellant's assertion, neither this Court nor the Virginia
Supreme Court has fashioned a bright line rule that a vehicle's
motor must be running or its ignition switch must be in the "on"
position for a defendant to be convicted of driving or operating
a motor vehicle while intoxicated in violation of Code
§ 18.2-266.
Appellant relies upon Stevenson v. City of Falls Church, 243
Va. 434, 416 S.E.2d 435 (1992), and Williams v. City of
Petersburg, 216 Va. 297, 217 S.E.2d 893 (1975). However, his
reliance is misplaced. In Williams, the defendant's conviction
was affirmed on the basis that the engine was running and when a
policeman tapped on the window of the vehicle the defendant made
a motion toward the gearshift. Id. at 301, 217 S.E.2d at 896.
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Stevenson's conviction was reversed not only because his engine
was off but because none of the vehicle's mechanical or
electrical equipment was engaged. Stevenson, 243 Va. at 435, 416
S.E.2d at 436. In Stevenson, the officer could not recall the
position of the ignition switch. Id. Neither case sets forth a
bright line rule that in order for a defendant to be convicted
under Code § 18.2-266, the vehicle's ignition switch must be
engaged or its motor running. Instead, Stevenson and Williams
merely suggest that these are factors which a trial court should
consider.
"'[O]perating' a vehicle within the proscription of the
drunk driving statute '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.'" Id. at 438, 416 S.E.2d at 437 (citation omitted). In
Lyons v. Petersburg, 221 Va. 10, 266 S.E.2d 880 (1980), a
defendant was convicted under a City of Petersburg driving under
the influence ordinance because the defendant was found at the
scene of an accident behind the steering wheel of a vehicle. Id.
at 12, 266 S.E.2d at 881. The Virginia Supreme Court noted that
"[i]t can be inferred that Mr. Lyons' car was where it was at the
time because he drove it there, and that the accident . . .
occurred at a time when Lyons was in actual physical control of
and operating his own vehicle." Id. at 13, 266 S.E.2d at 881.
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Burgett found appellant's truck in the travel lane
protruding into the intersection. The truck's headlights and
tail lights were illuminated, and its key was in the ignition
switch. The truck was in either first or third gear. Appellant
had his safety belt fastened and admitted he had been driving
around and was "headed home." The trial court correctly
concluded from this circumstantial evidence that the only
plausible way for the truck to have arrived at the intersection
was for appellant to have driven it there while under the
influence of alcohol.
Appellant's blood alcohol content was more than twice the
legal limit, and, by his own admission, he had moved the vehicle
from one place to another. Clearly, the circumstantial evidence
was sufficient for the trial court to convict appellant.
Accordingly, for the foregoing reasons, appellant's
conviction is affirmed.
Affirmed.
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