COMMONWEALTH OF VIRGINIA
JUNE 3, 1997
Record No. 0347-96-1
JAMES BERNARD PROPST
COMMONWEALTH OF VIRGINIA
OPINION BY JUDGE JOSEPH E. BAKER
FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY
Westbrook J. Parker, Judge
Present: Judges Baker, Annunziata and Overton
Argued at Norfolk, Virginia
Archer L. Jones, II (Jones & Jones, P.C., on brief), for
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
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. 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.
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