A defendant who was unconscious behind the wheel of his vehicle, with his foot on the brake and the motor running, after being abandoned by a companion who had been attempting to drive him home, was driving while intoxicated, and the Court of Appeals affirms his conviction under Va. Code § 18.2-266.
Defendant’s companion testified that while she was trying to drive him home from a meeting both had attended, defendant kept “slumping” and “leaning over” from the passenger side of his pickup truck, which she was driving. She testified she eventually became “upset” and “disgusted” with his behavior and she “panicked.” She pulled over to the side of the road, got out of the truck, and returned with a friend who had been driving behind her to bring her back to the meeting. The companion testified that she left the motor of defendant’s truck running.
A nearby resident noticed defendant sitting in the truck’s driver’s seat, slumped over the steering wheel, with his chin on his chest and his eyes closed. He also observed that the truck was in gear and defendant’s foot was on the brake. He could not see if defendant was breathing and called 911. He then reached into the vehicle, put the truck in park and turned on the hazard lights.
Police arriving at the scene noticed a strong odor of alcohol and arrested defendant after he submitted to a preliminary breath test. Another test at the detention center registered a blood alcohol content of 0.14 percent grams per 210 liters of breath.
On appeal, defendant asserts three errors. He argues the trial court erred in 1) determining the commonwealth’s evidence excluded each reasonable hypothesis of innocence; 2) rejecting defendant’s argument that the prosecution was required to prove that defendant possessed the requisite mens rea to justify a DUI conviction under § 18.2-266; and holding that the evidence sufficiently showed that defendant consciously moved from the passenger seat of the pickup truck to the driver’s seat and placed his foot on the brake between the time his companion left and the resident found him.
The commonwealth was not required to prove and the trial court was not required to speculate as to any possible hypothesis of innocence that may have flowed not from the evidence but from defendant’s imagination. We hold the trial court did not err in ruling that the commonwealth’s evidence excluded every reasonable hypothesis of defendant’s innocence and was consistent only with his guilt.
In light of the legislature’s omission of a mens rea requirement in Code § 18.2-266 and the public safety concern underlying the statute, both the Supreme Court of Virginia and this court have treated a defendant’s intent to operate a vehicle as unnecessary to a determination of guilt for driving while under the influence pursuant to Code §18.2-266. The concern is what could happen with an intoxicated individual behind the wheel, regardless of whether he intended to be there, turn on the car or move the vehicle. We conclude there is no mens rea requirement in Code § 18.2-266. As long as the commonwealth proves beyond a reasonable doubt that an intoxicated individual “operated” his vehicle, regardless of intent, he is guilty of DUI.
As to his “operation” of the vehicle, defendant was clearly in “actual physical control” of his truck. The truck’s motor was running and in gear, his foot was on the brake and the truck was capable of being immediately placed in motion to become a menace to the public and to its drunken operator.
The trial court inferred from the evidence that defendant changed positions after his companion left and then became the operator of the vehicle. We do not find these factual findings to be plainly wrong or without evidence to support them.
Case v. Commonwealth (Alston) No. 2188-12-4, Feb. 11, 2014; Loudoun County Cir.Ct. (McCahill) Alex N. Levay for appellant; Susan M. Harris, AAG, for appellee. VLW 014-7-031, 11 pp.