Sarafin v. Commonwealth

Present: All the Justices

JUSTIN SARAFIN

v. Record No. 131747 OPINION BY JUSTICE DONALD W. LEMONS
October 31, 2014
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this opinion we consider the definition of "operate"

and whether such operation must be "on a highway" to sustain a

conviction for driving under the influence pursuant to Code §

18.2-266.

I. Facts and Proceedings Below

On January 20, 2011, Officer K.E. McBrearty of the

Charlottesville Police Department responded to a noise

complaint at 1001 Page Street in Charlottesville. When

Officer McBrearty arrived at the scene, she observed Justin

Sarafin ("Sarafin") sitting in the driver's seat of his

vehicle, which was parked in his private driveway. Sarafin

was asleep – although the key was in the ignition and was

turned backward to activate the vehicle's auxiliary power.

McBrearty knocked on the window and Sarafin awoke, turned off

the vehicle's auxiliary power, and exited the vehicle.

Once Sarafin was outside the vehicle, McBrearty smelled

alcohol and noticed his eyes were bloodshot and glassy. She

questioned Sarafin about his activities that evening, and he

admitted to consuming several beers at a local pub, picking up
dinner at a different location, driving home, consuming more

alcohol, and then returning to his vehicle to listen to the

radio. Sarafin stated he never intended to leave his driveway

and, in fact, had fallen asleep around 2:30 a.m. while

listening to music.

Officer McBrearty administered several field sobriety

tests. Sarafin failed three out of five. Officer McBrearty

also administered a preliminary breath test and, based on

those results, arrested Sarafin for operating a vehicle under

the influence of alcohol in violation of Code § 18.2-266.

Sarafin's first trial in the Circuit Court for the City

of Charlottesville ("circuit court") resulted in a hung jury.

Prior to his second trial, Sarafin filed a motion requesting a

determination of the legal definition of "operate" and

"operation." He then filed a pretrial "motion to strike,"

arguing he could not be convicted under Code § 18.2-266

because he was on private property and, alternatively, there

was no evidence that he ever intended to activate the motive

power of the vehicle. The circuit court never addressed

Sarafin's pre-trial motions, and the case proceeded to trial.

Following the Commonwealth's case-in-chief, Sarafin moved

to strike the evidence. The circuit court took this motion

under advisement. Sarafin presented several witnesses,

testified on his own behalf and renewed his motion to strike

2
which the circuit court again took under advisement. He then

proposed jury instructions I, J, K and L. 1 The circuit court

refused Sarafin's instructions and granted the Commonwealth's

Instruction 6 over his objections.

The jury returned a guilty verdict and affixed

punishment at a $500 fine. In its conviction order dated

November 7, 2012, the circuit court imposed the jury's verdict

and, in addition, revoked Sarafin's operator's license for 12

months. 2

Sarafin appealed his conviction to the Court of Appeals

of Virginia, arguing that there was insufficient evidence to

convict him of violating Code § 18.2-266 because he was not

"operating" the vehicle on a highway, and that the circuit

court erred by refusing his jury instructions. In its

published opinion, Sarafin v. Commonwealth, 62 Va. App. 385,

748 S.E.2d 641 (2013), the Court of Appeals affirmed Sarafin's

conviction.

1
Sarafin also proposed an alternative version of
Instruction I, designated as Instruction I(A), which was
refused. None of his assignments of error specifically
address the refusal to give this instruction, focusing instead
on Instructions I, J, K, and L. Accordingly, Instruction I(A)
is not before us. Rule 5:17(c)(1)(i)("Only assignments of
error assigned in the petition for appeal will be noticed by
this Court.").
2
The circuit court suspended $250 of Sarafin’s fine,
conditioned upon successful completion of the Virginia Alcohol
Safety Action Program.

3
 The Court of Appeals held that under this Court's

precedents, Sarafin had actual physical control of the vehicle

and was therefore "operating" his vehicle within the meaning

of Code § 18.2-266. Sarafin, 62 Va. App. at 393-402, 748

S.E.2d at 645-49 (citing Enriquez v. Commonwealth, 283 Va.

511, 516-17, 722 S.E.2d 252, 255 (2012)). Citing some of its

earlier decisions, the Court of Appeals held that "public

ownership of the property upon which the vehicle is driven or

operated is not an element the Commonwealth must prove in a

prosecution for driving in violation of Code § 18.2-266." Id.

at 398, 748 S.E.2d at 647 (quoting Mitchell v. Commonwealth,

26 Va. App. 27, 35, 492 S.E.2d 839, 843 (1997)(citing Gray v.

Commonwealth, 23 Va. App. 351, 353, 477 S.E.2d 301, 302-03

(1996)). The Court of Appeals concluded that any reference to

"on a highway" in Enriquez, 283 Va. at 516-17, 722 S.E.2d at

255, was dicta. Sarafin, 62 Va. App. at 400-01, 748 S.E.2d at

648. Based on these definitional holdings, the Court of

Appeals affirmed the circuit court's refusal of Sarafin's

proffered jury instructions. Id. at 402-03, 748 S.E.2d at

649.

Sarafin appealed the judgment of the Court of Appeals to

this Court, and we awarded an appeal on the following

assignments of error:

4
 1. The Virginia Court of Appeals erred by permitting
the trial court to find that Justin Sarafin
("Sarafin") was in physical control of his vehicle
and thereby that he was its "operator" while asleep
with only his car radio playing while parked on his
private property.

a. The Virginia Court of Appeals erred by finding
that these facts were sufficient to support the
trial court's conviction.

2. The Virginia Court of Appeals erred in construing
Va. Code § 18.2-266 to allow conviction for
"operation" on private property.

3. The Virginia Court of Appeals erred by not requiring
the trial court to give any or all of Instructions
I, J, K and L offered by Sarafin that precisely and
correctly defined what constituted "operation" to
the jury.

II. Analysis

A. Standard of Review

Assignments of error 1 and 2 require us to interpret the

meaning of "operate [a] motor vehicle" as used in Code § 18.2-

266 and whether "operation" on private property is within the

scope of the statute. Questions of statutory interpretation

are reviewed de novo. Belew v. Commonwealth, 284 Va. 173,

177, 726 S.E.2d 257, 259 (2012). Whether Sarafin operated his

vehicle in a manner which violated Code § 18.2-266 is a mixed

question of law and fact which is reviewed de novo. Nelson v.

Commonwealth, 281 Va. 212, 215, 707 S.E.2d 815, 816 (2011).

5
 Sarafin's third assignment of error focuses upon the

circuit court's refusal of Jury Instructions I, J, K and L.

As a general rule, the decision to grant or deny proffered

instructions rests within the sound discretion of the trial

court. See Daniels v. Commonwealth, 275 Va. 460, 466, 657

S.E.2d 84, 87 (2008). However, "whether a jury instruction

accurately states the relevant law is a question of law that

we review de novo." Lawlor v. Commonwealth, 285 Va. 187, 228,

738 S.E.2d 847, 870 (2013)(quoting Orthopedic & Sports

Physical Therapy Assocs., Inc. v. Summit Group Props., LLC,

283 Va. 777, 782, 724 S.E.2d 718, 721 (2012)). In deciding

whether a particular instruction is proper, we view the facts

in the light most favorable to the proponent of the

instruction. See Commonwealth v. Cary, 271 Va. 87, 91, 623

S.E.2d 906, 907 (2006).

B. Code § 18.2-266

Code § 18.2-266 provides, in relevant part:

It shall be unlawful for any person to
drive or operate any motor vehicle, engine
or train . . . while such person is under
the influence of alcohol. . . .
For the purposes of this article, the term
"motor vehicle" includes mopeds, while
operated on the public highways of this
Commonwealth.

6
Sarafin's appeal involves two basic inquiries: (1) the

definition of "operate," and (2) whether operation must occur

on a highway to sustain a conviction under Code § 18.2-266.

1. Actual Physical Control

Our past decisions involving operation of a vehicle under

the influence have focused on whether the defendant was in

actual physical control of the vehicle. See, e.g., Enriquez,

283 Va. at 511, 722 S.E.2d at 252; Nelson, 281 Va. at 214,

219, 707 S.E.2d at 815, 818; Nicolls v. Commonwealth, 212 Va.

257, 258, 259, 184 S.E.2d 9, 10, 11 (1971); Gallagher v.

Commonwealth, 205 Va. 666, 667, 670, 139 S.E.2d 37, 38, 40

(1964). In Nelson, we addressed a factual scenario remarkably

similar to this case. Nelson was asleep inside his vehicle

which was parked in the cul-de-sac of a residential

neighborhood. 281 Va. at 214, 707 S.E.2d at 816. The

ignition was in the auxiliary position, and the radio was

playing. Id. Nelson argued that, based on these facts, he

was not operating his motor vehicle. Id. at 215, 707 S.E.2d

at 816. We disagreed, holding that:

"Operating" means "engaging the
machinery of the vehicle which alone, or
in sequence, will activate the motive
power of the vehicle." 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

7
 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.

Nelson, 281 Va. at 219, 707 S.E.2d at 818 (internal citation

omitted).

Just a year after deciding Nelson, we again addressed the

meaning of "operate" in Enriquez. We stated that "any

individual who is in actual physical control of a vehicle is

an operator." Enriquez, 283 Va. at 516, 722 S.E.2d at 255

(internal quotation marks omitted). In defining "actual

physical control," we embraced the dissenting opinion in

Stevenson v. City of Falls Church, 243 Va. 434, 439-40, 416

S.E.2d 435, 438-39 (1992)(Compton, J., dissenting), which

stated:

Ordinary experience tells us that one in a
drunken stupor in the driver's seat of a
vehicle is likely to arouse abruptly,
engage the motive power of the vehicle,
and roar away imperiling the lives of
innocent citizens. This sequence of events
easily can occur where, as here, a drunk
is sitting behind the steering wheel of a
motor vehicle alone, with the key already
in the ignition. From a mechanical
standpoint, the vehicle is capable of
being immediately placed in motion to
become a menace to the public, and to its
drunken operator.

Based on this reasoning, we held in Enriquez that:

[I]n discerning whether an intoxicated
person seated behind the steering wheel of

8
 a motor vehicle . . . with the key
inserted into the ignition switch of the
vehicle is in actual physical control of
the vehicle, the position of the key in
the ignition switch is not determinative.
[W]hen an intoxicated person is seated
behind the steering wheel . . . and the
key is in the ignition switch, he is in
actual physical control of the vehicle
and, therefore, is guilty of operating the
vehicle while under the influence of
alcohol within the meaning of Code § 18.2-
266.

283 Va. at 516-17, 722 S.E.2d at 255.

In this case, Sarafin was in actual physical control of

his vehicle. He was seated behind the steering wheel, and the

key was in the ignition switch. Accordingly, under our prior

case law, the evidence was sufficient to conclude that he was

an operator of the vehicle.

2. "On a Highway"

The difference between this case and Nelson and Enriquez

is the location of the vehicle. In Nelson and Enriquez the

vehicles were clearly on public highways. Compare Nelson, 281

Va. at 214, 707 S.E.2d at 816, with Enriquez, 283 Va. at 513,

722 S.E.2d at 253. In this case, Sarafin was on private

property, namely, his own driveway. The question remains

whether Code § 18.2-266 is violated when the operation of the

vehicle occurs on a private way.

Code § 18.2-266 contains an explicit "on a highway"

requirement for the operation of mopeds. However, the statute

9
includes no explicit language requiring an operator of a motor

vehicle to be "on a highway" to sustain a conviction under

Code § 18.2-266. Sarafin invites us, based on his reading of

the definition of "operator" contained in Code § 46.2-100, 3 to

imply an "on a highway" requirement for illegal operation of a

motor vehicle under the influence of alcohol. We decline this

invitation for several reasons.

First, we agree with the Commonwealth that the plain

language of Code § 18.2-266 demonstrates there is no "on a

highway" requirement for the operation of motor vehicles. The

General Assembly clearly knows how to impose an "on a highway"

requirement, but chose not to do so where the operator of a

motor vehicle is intoxicated. In Code § 18.2-266, the General

Assembly prohibits the operation of "mopeds, [] on the public

highways of this Commonwealth" while the operator is

intoxicated. (Emphasis added.)

Similarly, the General Assembly included a "public

highway" requirement in Virginia’s implied consent statute,

3
Code § 46.2-100 defines "operator" as:

every person 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.

(Emphasis added.)

10
Code § 18.2-268.2. Of course, the implied consent law is

based upon the premise that a user of public roads in the

Commonwealth consents "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,

18.2-266.1, or subsection B of § 18.2-272 or of a similar

ordinance within three hours of the alleged offense." Id.

"[W]hen the General Assembly has used specific language

in one instance, but omits that language or uses different

language when addressing a similar subject elsewhere in the

Code, we must presume that the difference in the choice of

language was intentional." See Zinone v. Lee's Crossing

Homeowners Ass'n, 282 Va. 330, 337, 714 S.E.2d 922, 925

(2011)(citing Hollingsworth v. Norfolk Southern Railway, 279

Va. 360, 366-67 & n.2, 689 S.E.2d 651, 654-55 & n.2 (2010);

Halifax Corp. v. First Union National Bank, 262 Va. 91, 100,

546 S.E.2d 696, 702 (2001). Based on this well-established

rule of statutory construction, we hold that Code § 18.2-266

contains no "on a highway" requirement for the operation of

motor vehicles.

Our conclusion is further supported by the fact that

Code § 18.2-266 applies equally to motor vehicles, engines and

trains. Trains are operated on privately-owned tracks, not

11
public highways. See, e.g., Preseault v. United States, 100

F.3d 1525, 1568-69 (Fed. Cir. 1996)(quoting Osgood v. Central

Vermont Ry. Co., 60 A. 137, 140 (Vt. 1905))("A railroad

corporation holds its station, grounds, railroad tracks . . .

as its private property."); Coonce v. Missouri P. R. Co., 358

S.W.2d 852, 854 (Mo. 1962)("A railroad track is private

property and the railroad generally has the exclusive right to

the use of its tracks."). Sarafin urges us to impose a public

highway requirement for the operation of motor vehicles, which

would require us to read "engine[s] or train[s]" out of the

statute. If the General Assembly had intended to segregate

the operation of trains from the operation of motor vehicles,

it certainly knows how to do so. 4 Because Code § 18.2-266

applies equally to motor vehicles, engines and trains, and

trains only operate on private tracks, we would have to carve

out an implicit "private way" exception for motor vehicles in

order to grant Sarafin relief. This would require us to usurp

the legislative function of the General Assembly, which we

refuse to do. Instead we are bound by the plain meaning of

the statute, which compels our conclusion that Code § 18.2-266

4
The General Assembly has segregated the operation of
aircraft and watercraft while under the influence from the
operation of motor vehicles while under the influence. Code §
29.1-738 prohibits operation of watercraft while under the
influence of alcohol and Code § 5.1-13 prohibits operation of
aircraft while under the influence of alcohol.

12
contains no "private way" exception for the operation of motor

vehicles.

In its argument before this Court, the Commonwealth noted

that we have previously upheld convictions for driving under

the influence in two cases where the vehicles were on private

property. See Valentine v. County of Brunswick, 202 Va. 696,

697, 699, 119 S.E.2d 486, 486-87, 488 (1961); Williams v. City

of Petersburg, 216 Va. 297, 298, 301, 217 S.E.2d 893, 894, 896

(1975). While those cases involved convictions under county

drunk driving ordinances, the ordinances at issue were similar

to Code § 18.2-266. Therefore, our reasoning in Valentine,

202 Va. at 698-99, 119 S.E.2d 487-88, and Williams, 216 Va. at

299, 217 S.E.2d at 895, supports our conclusion that Code §

18.2-266 has no "on a highway" requirement.

Finally, Sarafin argues that this Court incorporated an

"on a highway" requirement into the rule it announced in

Enriquez, when we stated that:

When an intoxicated person is seated
behind the steering wheel of a motor
vehicle on a public highway and the key is
in the ignition switch, he is in actual
physical control of the vehicle and,
therefore, is guilty of operating the
vehicle while under the influence of
alcohol within the meaning of Code § 18.2-
266.

283 Va. at 517, 722 S.E.2d at 255 (emphasis added). However,

the issue in Enriquez was not whether the defendant was on a

13
public highway, but rather, whether the defendant was in

actual physical control of his vehicle. Neither of the

parties in Enriquez briefed or argued any contention that Code

§ 18.2-266 contained an "on a highway" requirement. Because

the reference to "on a highway" was not essential to the

Court's judgment, it is unbinding dicta. See Harmon v. Peery,

145 Va. 578, 583, 134 S.E. 701, 702 (1926) ("Obiter dicta are

such opinions uttered by the way, not upon the point or

question pending, . . . as if turning aside . . . from the

main topic of the case to collateral subjects." (citations and

internal quotation marks omitted)).

C. Jury Instructions

Sarafin proposed four jury instructions which are now

before us on appeal. Proposed Instruction I reads:

Operating means driving a motor vehicle
from one place to another; starting the
engine; or engaging the machinery of a
vehicle which alone or in sequence will
activate the motive power of the vehicle
without actually putting the vehicle in
motion; or manipulating the electrical or
mechanical equipment which alone or in
sequence will activate the motive power of
the vehicle without actually putting the
vehicle in motion. Any individual who is
in actual physical control of a vehicle on
a public roadway is an operator. When the
engine is not running in a private
driveway, the Commonwealth must prove by
direct or circumstantial evidence that the
defendant specifically intended to
activate the motive power of the vehicle

14
 to enter a public roadway while under the
influence of alcohol.

Proposed Instruction K defines an "operator" as "every person

who drives or is in actual physical control of a motor vehicle

on a highway." Proposed Instructions L and J provide the

defendant's definition of "highway" and "private road or

driveway." The circuit court refused each of Sarafin's

proposed instructions, giving Instruction 6 instead:

Operating a motor vehicle means driving
the vehicle from one place to another or
starting the engine or manipulating the
electrical or mechanical equipment of the
vehicle without actually putting the
vehicle in motion or engaging the
machinery of the vehicle which alone or in
sequence will activate the motive power of
the vehicle.

It was not improper for the circuit court to grant

Instruction 6 and refuse Instructions I, J, K and L.

Instruction 6 clearly states the law and covers the issues

fairly raised by the evidence. In contrast, Instructions I,

J, K and L either misstate the law or are irrelevant based on

the facts of this case.

Given our holding that Code § 18.2-266 contains no "on a

highway" requirement, the inclusion of such a requirement in

the definition of operating a motor vehicle as set forth in

proposed Instruction I is incorrect. Similarly, proposed

Instructions J and L are irrelevant, because the jury did not

15
need definitions of "highway" and "private road or driveway"

to convict the defendant of violating Code § 18.2-266.

Finally, proposed Instruction K was properly refused, even

though it correctly recited the definition of operator

contained in Code § 46.2-100, because Code § 18.2-266 has no

"on a highway" requirement.

III. Conclusion

We will affirm the judgment of the Court of Appeals

upholding Sarafin's conviction.

Affirmed.

JUSTICE MIMS, dissenting.
In Enriquez v. Commonwealth, 283 Va. 511, 517, 722 S.E.2d

252, 255 (2012), we said that

when an intoxicated person is seated
behind the steering wheel of a motor
vehicle on a public highway and the key is
in the ignition switch, he is in actual
physical control of the vehicle and,
therefore, is guilty of operating the
vehicle while under the influence of
alcohol within the meaning of Code § 18.2-
266.
(Emphasis added). 1 Our holding in that case therefore applies

only when the motor vehicle is located on a public highway.

The motor vehicle in this case was not. Consequently, “[t]he

Court seeks to avoid the obvious import of this language by

1
This emphasized portion of Enriquez is omitted from the
quotation in Part II(B)(1) of the majority opinion.

16
characterizing it as mere dicta. Only a concept of dictum

that includes the very reasoning of the opinion could support

this characterization.” Rogers v. Tennessee, 532 U.S. 451,

469 (Scalia, J., dissenting). I therefore must dissent.

In Enriquez, the defendant was parked at a bus stop on a

public highway. 283 Va. at 513, 722 S.E.2d at 253. He “was

going to see his girlfriend but was not sure as to where [she]

was.” Id. at 514, 722 S.E.2d at 254 (internal quotation marks

omitted). The key was in the vehicle’s ignition but no trial

witness knew what position it was in. Id.

Appealing his conviction under Code § 18.2-266, Enriquez

noted our decision in Stevenson v. City of Falls Church, 243

Va. 434, 416 S.E.2d 435 (1992), wherein we reversed an earlier

conviction under Code § 18.2-266 on similar facts. In

deciding that Stevenson did not control, we explicitly

“turn[ed] for assistance to Code § 46.2-100.” We observed

that “Code § 46.2-100 provides that ‘operator’ or ‘driver’

means every person 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.” Enriquez, 283 Va. at 515-16, 722 S.E.2d at

255 (internal quotation marks, alterations, and emphasis

omitted).

We also observed that in an earlier decision, Williams v.

City of Petersburg, 216 Va. 297, 217 S.E.2d 893 (1975), “we

17
stated that operating a motor vehicle included ‘manipulating

the mechanical or electrical equipment of the vehicle . . .

which alone, or in sequence, will activate the motive power of

the vehicle.’” Enriquez, 283 Va. at 516, 722 S.E.2d at 255

(quoting Williams, 216 Va. at 300, 217 S.E.2d at 896). We

clarified that a defendant who met this standard of

“operat[ing]” under Code § 18.2-266 would be culpable, but

that it was not the only standard. 2 Rather, we said,

“[a]lthough operating a motor vehicle may be proven by

evidence of manipulation of the mechanical or electrical

equipment,” i.e., the Williams standard, “it need not be

proven in that manner. All that is necessary is evidence that

the person is in actual physical control of the vehicle within

the meaning of Code § 46.2-100.” Id. (emphasis added).

Consequently, there are two standards that may be applied

to determine whether a defendant “operate[d] any motor

vehicle, engine or train” for the purposes of Code § 18.2-266:

the Williams standard (requiring manipulation of the

mechanical or electrical equipment of the vehicle which will

activate its motive power) and the Enriquez standard

(requiring actual physical control within the meaning of Code

§ 46.2-100). As we ourselves explained when we formulated it,

the Enriquez standard flows directly from the definition of

“operator” provided by Code § 46.2-100: we said, “the

2
The majority opinion does not reference the Williams
standard.

18
statutory definition of ‘operator’ is controlling.” Id.

(emphasis added).

Thus, the Enriquez standard requires the element that the

motor vehicle be present on a public highway precisely and

solely because Code § 46.2-100 includes that element in its

definition of “operator”: the relevant statutory definition

is “every person who . . . drives or is in actual physical

control of a motor vehicle on a highway.” 3 Code § 46.2-100

(emphasis added).

We (unanimously) created this nexus between Code §§ 18.2-

266 and 46.2-100 in Enriquez, so the significance the majority

attributes to its omission from the language enacted by the

General Assembly is misplaced. 4 Similarly, the fact that

3
Code § 46.2-100 defines “highway” for the purpose of
this definition in relevant part as:

every way or place open to the use of the
public for purposes of vehicular travel in
the Commonwealth . . . and, for law-
enforcement purposes (i) . . . all private
roads or private streets that have been
specifically designated “highways” by an
ordinance adopted by the governing body of
the county, city, or town in which such
private roads or streets are located and
(ii) . . . every way or place used for
purposes of vehicular travel on any
property owned, leased, or controlled by
the United States government and located
in the Commonwealth.
4
Moreover, the General Assembly has acquiesced in this
nexus because it has not amended Code § 18.2-266 in either of
its two sessions following Enriquez, and none of its five
subsequent amendments to Code § 46.2-100 have altered the
definition of “operator.” E.g., Barson v. Commonwealth, 284

19
trains and engines are not operated on public highways is

irrelevant here because they are expressly excluded from the

meaning of “motor vehicle” as used in the definition of

“operator” set out in Code § 46.2-100. 5 Consequently, the

Williams standard is adequate to cover them as they are not

operated on public highways. 6

While the majority refers to two cases in which we have

affirmed similar convictions for conduct on private property,

neither is relevant here because they do not present facts

similar to those on which we decided Enriquez. In the first,

Valentine v. County of Brunswick, 202 Va. 696, 697, 119 S.E.2d

486, 486 (1961), the defendant stipulated that he “operat[ed]

his motor vehicle while under the influence of intoxicants.”

The other was Williams, in which the vehicle’s motor was

running. 216 Va. at 298, 217 S.E.2d at 894.

Accordingly, I reject the majority’s characterization

that the Enriquez standard’s public highway element is dictum.

Va. 67, 74, 726 S.E.2d 292, 296 (2012) (citing Tazewell County
School Board v. Brown, 267 Va. 150, 163-64, 591 S.E.2d 671,
678 (2004)); J. A. Jones Constr. Co. v. Martin, 198 Va. 370,
378, 94 S.E.2d 202, 207-08 (1956); see also 2013 Acts chs.
128, 400 and 783; 2014 Acts chs. 53 and 256.
5
“‘Motor vehicle’ means every vehicle as defined in this
section . . . .” Code § 46.2-100. “‘Vehicle’ means every
device in, on or by which any person or property is or may be
transported or drawn on a highway, except devices moved by
human power or used exclusively on stationary rails or
tracks.” Id. (emphasis added).
6
Similarly, under the Williams standard, a person
“operate[s]” a motor vehicle for the purpose of Code § 18.2-
266 once the motor is running wherever the motor vehicle is.

20
Without that element, the Court has taken the final step

toward construing Code § 18.2-266 to punish a person for

merely occupying, rather than operating, a motor vehicle. See

Nelson v. Commonwealth, 281 Va. 212, 219, 707 S.E.2d 815, 818

(2011) (Koontz, J., dissenting) (quoting Williams, 216 Va. at

303, 217 S.E.2d at 898 (Harrison, J., joined by Cochran and

Poff, JJ., dissenting)). If the public highway element had

been omitted from our Enriquez opinion, I would have dissented

then. Because the majority retroactively withdraws it here, I

must do so now.

JUSTICE McCLANAHAN, with whom CHIEF JUSTICE KINSER joins,
dissenting.

As far back as 1964, this Court determined in Gallagher

v. Commonwealth, 205 Va. 666, 139 S.E.2d 37 (1964), that Code

§ 18.1-54, now Code § 18.2-266, contains an "on a highway"

element based on the Court's interpretation of the word

"operate" in the DUI statute. And, this Court has

consistently adhered to this interpretation for exactly half a

century, until today.

The majority opinion instead concludes there is now no

"on a highway" element for a DUI conviction of an operator of

a motor vehicle under Code § 18.2-266, reaching this

conclusion by declaring that the Court's recent articulation

21
of such requirement in Enriquez v. Commonwealth, 283 Va. 511,

722 S.E.2d 252 (2012), was mere dicta.

Jettisoning the half-century-old highway requirement in

the DUI statute also greatly undermines the "actual physical

control" part of the majority opinion analysis (Part II.B.1.).

The actual physical control and the highway elements of the

DUI statute are derived from the very same statutory

definition taken from the Motor Vehicle Code and incorporated

into the DUI statute.

In Gallagher, this Court interpreted the word "operate"

in the DUI statute to include both the actual physical control

element and the highway element by incorporating into the

statute the definition of the word "operator" set forth in

Code § 46.1-1(17) (now Code § 46.2-100) of the "Motor Vehicle

Code," to-wit: "Every person who drives or is in actual

physical control of a motor vehicle upon a highway or who is

exercising control over or steering a vehicle being towed by a

motor vehicle." Gallagher, 205 Va. at 668, 139 S.E.2d at 39

(emphasis added). The definition of "operator" in the

successor statute, incorporated into the Court's analysis in

Enriquez, is nearly identical: "'[o]perator' or 'driver' means

every person 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

22
vehicle." Code § 46.2-100 (emphasis added); Enriquez, 283 Va.

at 516, 722 S.E.2d at 255.

Based on this definition, this Court has held in a series

of cases over the last fifty years, beginning with Gallagher

and extending to Enriquez, that the DUI statute proscribes a

range of acts by an intoxicated person determined to

constitute actual physical control of a motor vehicle without

the vehicle actually being put in motion. 1 See, e.g.,

Gallagher, 205 Va. at 667, 139 S.E.2d at 37 (defendant found

sitting at steering wheel of car, which was stuck in a highway

median ditch with the motor running, the car in gear, and a

rear wheel spinning); Nicolls v. Commonwealth, 212 Va. 257,

258, 184 S.E.2d 9, 10 (1971) (defendant found "slumped over"

steering wheel of car, parked on a highway with motor running,

lights on, and heater in operation); Nelson v. Commonwealth,

281 Va. 212, 214, 707 S.E.2d 815, 815-16 (2011) (defendant

found "hunched over" in driver's seat of car, parked on a cul-

de-sac in a residential neighborhood, engine not running, but

radio playing and ignition key in an "on or accessory

1
Addressing the proscription of "driv[ing] or
operat[ing]" a motor vehicle while under the influence of
alcohol under the former DUI statute, Code § 18.1-54 (emphasis
added), the Court in Gallagher explained: "It seems clear that
driving an automobile means putting in motion; but it seems
equally clear that unless it was intended that § 18.1-54
should cover an activity in addition to driving, the word
'operate' is useless baggage and serves no purpose."
Gallagher, 205 Va. at 668-69, 139 S.E.2d at 39.

23
position"); Enriquez, 283 Va. at 513-14, 722 S.E.2d 253-54

(defendant seated behind steering wheel of car, parked on a

public street, engine not running, but key in ignition

switch). Moreover, in each such case, where the Court

affirmed the conviction under the DUI statute, the defendant

was in a motor vehicle located on a highway, as defined in

Code § 46.2-100, not private property. 2 This, of course, is

consistent with the definition of "operator" incorporated into

the DUI statute from this same provision of the Motor Vehicle

Code, Code § 46.2-100, the effect of which has been, once

again, to include both the actual physical control and highway

requirements as elements of a DUI conviction.

Accordingly, in Enriquez, a unanimous decision, we

reaffirmed the nexus between Code §§ 18.2-266 and 46.2-100.

2
Code § 46.2-100 defines "highway" as:

[T]he entire width between the boundary lines of
every way or place open to the use of the public
for purposes of vehicular travel in the
Commonwealth, including the streets and alleys,
and, for law-enforcement purposes, (i) the entire
width between the boundary lines of all private
roads or private streets that have been
specifically designated "highways" by an ordinance
adopted by the governing body of the county, city,
or town in which such private roads or streets are
located and (ii) the entire width between the
boundary lines of every way or place used for
purposes of vehicular travel on any property owned,
leased, or controlled by the United States
government and located in the Commonwealth.

24
We thus did not state that only a portion of the definition of

"operator" in Code § 46.2-100 controls construction of the

phrase "operate a motor vehicle" in Code § 18.2-266. Rather,

we held that the entire definition of "operator" in Code §

46.2-100 governs in applying Code § 18.2-266. It would be

inexplicable to import the "actual physical control" element

of Code § 46.2-100 into the DUI statute, while simultaneously

rejecting the "on a highway" requirement imposed by that same

Code section. 3 Id.

The majority opinion, however, without any reason or

principle, tries to have it both ways by adhering to the

actual physical control requirement while simultaneously

rejecting (after 50 years) the highway requirement, when both

requirements were derived from the very same statutory

definition, which this Court incorporated into the DUI statute

in toto.

Furthermore, while it is indeed true that the legislature

did not include the "on a highway" requirement within the

express language of Code § 18.2-266, that is equally true of

the "actual physical control" requirement that the majority

3
Because, here, we are reviewing a DUI case like Enriquez
where the defendant's vehicle was not in motion, and we are,
thus, called upon to construe the word "operate" as opposed to
the word "drive" under Code § 18.2-266, I express no opinion
as to whether one may be guilty under the statute when driving
on private property while under the influence of alcohol.

25
applies in this case. Nonetheless, given the significant

history of this Court's use of the definition of "operator" in

the Motor Vehicle Code to define "operate" in the DUI statute

without any legislative response, the legislature has

undoubtedly viewed this interpretation favorably. 4 See

Manchester Oaks Homeowners Ass'n v. Batt, 284 Va. 409, 428,

732 S.E.2d 690, 702 (2012); Barson v. Commonwealth, 284 Va.

67, 74, 726 S.E.2d 292, 296 (2012)); Tazewell County School

4
I also disagree with the majority's position that
Valentine v. County of Brunswick, 202 Va. 696, 119 S.E.2d 486
(1961), and Williams v. City of Petersburg, 216 Va. 297, 217
S.E.2d 893 (1975), support its conclusion that "Code § 18.2-
266 has no 'on a highway' requirement." The majority asserts
that the Court upheld DUI convictions in these two cases under
local ordinances similar to Code § 18.2-266 where the vehicles
involved were on private property. First, Valentine
specifically states that the "ordinance [at issue] 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. Furthermore,
Valentine would have no precedential value to the extent it
could otherwise be read as supporting the majority's
conclusion because it would have been impliedly overruled by
Gallagher. As to Williams, the Court made no determination
that the motor vehicle at issue there was located on private
property. As the Court explained, "[t]he evidence does not
establish whether the parking lot was publicly or privately
owned, but because the city ordinance . . . proscribes the
prohibited conduct 'in the city,' ownership of the parking lot
is not relevant in this case." Williams, 216 Va. at 298 n.3,
217 S.E.2d at 894 n.3.
In addition, unlike the majority, I have no objection, as
a matter of statutory construction, to this Court applying a
motor vehicle related definition from the Motor Vehicle Code
to define the contours of the meaning of "operate any motor
vehicle" under the DUI statute, even though that same
definition cannot be applied to the operation of trains under
the DUI statute. Code § 18.2-266.

26
Board v. Brown, 267 Va. 150, 163-64, 591 S.E.2d 671, 678

(2004). For these reasons, I discern no justifiable basis

for departing from this Court's precedent in deciding this

case, a conclusion dictated by fidelity to the doctrine of

stare decisis. See Jamerson v. Coleman-Adams Constr., Inc.,

280 Va. 490, 504, 699 S.E.2d 197, 204 (2010) ("'[A]ny

departure from [the doctrine of stare decisis] demands special

justification.'" (quoting Arizona v. Rumsey, 467 U.S. 203, 212

(1984))); see also Selected Risks Ins. Co. v. Dean, 233 Va.

260, 265, 355 S.E.2d 579, 581 (1987); Kelly v. Trehy, 133 Va.

160, 169, 112 S.E. 757, 760 (1922). Accordingly, I would

reverse the judgment of the Court of Appeals affirming the

defendant's conviction for violating Code § 18.2-266 and

vacate the conviction.

27