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Driver ‘Operated’ Vehicle in Private Driveway

Deborah Elkins//November 7, 2014

Driver ‘Operated’ Vehicle in Private Driveway

Deborah Elkins//November 7, 2014

A defendant who was parked in his vehicle in his driveway, with his key in the ignition and turned to auxiliary power, can be convicted of operation of a vehicle while under the influence of alcohol; the Supreme Court of Virginia affirms defendant’s conviction under Va. Code § 18.2-266.

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. In this case, defendant was in actual physical control of his vehicle. He was seated behind the steering wheel, and the key was in the ignition switch. Under our prior case law, the evidence was sufficient to conclude that he was an operator of the vehicle.

The question remains whether Code § 18.2-266 is violated when the operation of the vehicle occurs on a private way. Defendant invites us, based on his reading of the definition of “operator” contained in Code § 46.2-100, 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. 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 public highways.

The trial court did not err in declining to give four jury instructions proffered by defendant. 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 need definitions of “highway” and “private road or driveway” to convict 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” requirements.

Judgment of the Court of Appeals upholding the DUI conviction is affirmed.


Mims, J.: Our holding in Enriquez v. Commonwealth, 283 Va. 511 (2012), applies only when the motor vehicle is located on a public highway. The motor vehicle in this case was not.

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.

I reject the majority’s characterization that the Enriquez standard’s public highway element is dictum. 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. If the public highway element had been omitted from out Enriquez opinion, I would have dissented then. Because the majority retroactively withdraws it here, I must do so now.

McClanahan, J., joined by Kinser, C.J.: Jettisoning the half-century old highway requirement in the DUI statute greatly undermines the “actual physical control” part of the majority opinion analysis.

This court has held in a series of cases over the last 50 years 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 in motion.

In each such case, whether 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. 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 the highway requirement as elements of a DUI conviction.

I would reverse the Court of Appeals’ judgment and vacate the conviction.

Sarafin v. Commonwealth (Lemons) No. 131747, Oct. 31, 2014; Va. Ct. App.; David L. Heilberg for appellant; Virginia B. Theisen, Sr. AAG; Mark R, Herring, AG, for appellee. VLW 014-6-081, 27 pp.

VLW 014-6-081

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