Rix v. Com.

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Thursday, the 9th day of June,
2011.

Ellen Marie Rix, Appellant,

against Record No. 101737
Court of Appeals No. 1424-09-1

Commonwealth of Virginia, Appellee.

Upon an appeal from a judgment rendered by the Court
of Appeals of Virginia.

Upon consideration of the record, briefs, and argument of

counsel, the Court is of opinion that there is no reversible error in

the judgment of the Court of Appeals.

On June 21, 2008, Virginia Beach Police Officer B. K. Womble

observed a vehicle "weaving" on Interstate 264 in the City of Virginia

Beach. He stopped the vehicle and approached it. While doing so, he

saw the driver exchange seats with the front-seat passenger. The

driver, Veselina Stoilova, who had been behind the steering wheel

while the car was in motion, was in the passenger seat when the

officer reached the car. The former passenger was Ellen Marie Rix

(the defendant) whom the officer found sitting in the driver’s seat

behind the steering wheel. The keys were in the ignition and the

engine was running.

The officer had the defendant step out of the car. She had a

strong odor of alcohol about her person, and exhibited slightly
slurred speech. Her eyes were bloodshot and glassy. She swayed when

standing and walking. She refused to take a field sobriety test and

told the officer that he could not arrest her because she had not been

driving. The officer placed her under arrest and read her the implied

consent law. She refused to take a breathalyzer test. Taken before a

magistrate, the defendant was charged with operating a motor vehicle

while under the influence of alcohol, second offense within five

years, in violation of Code §§ 18.2-266 and 270 and with refusal to

take a blood or breath test, second offense within ten years, in

violation of Code § 18.2-268.3.

The defendant was convicted in general district court and

appealed the convictions to the Circuit Court of the City of Virginia

Beach. At a bench trial, Officer Womble admitted that he had not seen

the defendant put the car in motion. Veselina Stoilova testified that

she had driven the car but had asked the defendant to exchange seats

with her because she was driving without a permit. The defendant

testified that she exchanged seats with the driver because she thought

that the driver would face deportation if arrested. The defendant was

convicted of both offenses. She appealed to the Court of Appeals. A

panel of that Court, by published opinion, Rix v. Commonwealth, 56 Va.

App. 749, 756, 697 S.E.2d 33, 36 (2010), affirmed the convictions. We

awarded her an appeal.

Because the facts are undisputed, this appeal presents only the

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question of the legal conclusion to be drawn from those facts. The

defendant does not question the sufficiency of the evidence of the

degree of her intoxication, but contends that she was not the operator

of a motor vehicle within the meaning of the relevant statutes.

Code § 18.2-266 makes it unlawful to "drive or operate" a motor

vehicle while under the influence of alcohol to a degree that impairs

one’s ability to drive safely. Code § 46.2-100 includes within the

definition of an "operator [of a motor vehicle]" any person who "is in

actual physical control of a motor vehicle on a highway." Our inquiry

is therefore whether the defendant was in actual physical control of

the vehicle.

We recently reviewed our decisions considering variations on this

theme in Nelson v. Commonwealth, 281 Va. 212, 707 S.E.2d 815 (2011).

In that case, Nelson was found slumped over the steering wheel of a

vehicle parked in a residential neighborhood, asleep or unconscious.

The car’s radio was playing but the engine was not running and the

ignition key was turned to the position that allowed the radio to

operate while the engine was not running. The gearshift was in the

"park" position. Id. at 214, 707 S.E.2d at 816. We affirmed Nelson’s

conviction because, by turning the ignition key to the "on" or

"accessory" position that would allow the radio to operate, he had

manipulated the electrical equipment of the vehicle. Applying the

test explained in Stevenson v. City of Falls Church, 243 Va. 434, 438,

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416 S.E.2d 435, 438 (1992), we noted that "operating" a motor vehicle

includes "manipulating the mechanical or electrical equipment of the

vehicle without actually putting the car in motion. It means engaging

the machinery of the vehicle which alone, or in sequence, will

activate the motive power of the vehicle." Nelson, 281 Va. at 216,

707 S.E.2d at 817. *

Accordingly, we held that Nelson’s action was a step which, taken

in sequence, would have led to the activation of the motive power of

the vehicle. Id. at 219, 707 S.E.2d at 818.

In the present case, we do not reach the question whether the

defendant took some action which, in sequence, would have activated

the motive power of the vehicle. Its motive power was already

activated. While the officer watched, she took actual physical

control of a fully operational motor vehicle on a highway, with its

ignition key in the "on" position and its engine running. She thus

met the statutory definition of an "operator" of a motor vehicle. See

Code § 46.2-100. Accordingly, the Court affirms the judgment of the

Court of Appeals. The appellant shall pay to the Commonwealth of

Virginia two hundred and fifty dollars damages.

This order shall be published in the Virginia Reports and shall

*
We reversed Stevenson’s conviction because the engine of his
vehicle was not running and we assumed from the evidence that the
ignition key was in the "off" position. The Commonwealth’s evidence
in that case therefore failed to meet the test for "operating" a motor
vehicle. 243 Va. at 438, 416 S.E.2d at 438.
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be certified to the Court of Appeals of Virginia and to the Circuit

Court of the City of Virginia Beach.

A Copy,

Teste:

Patricia L. Harrington, Clerk

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