Hall v. Com.

• Decision Date: 05 August 1997
• Docket Number: No. 1782-96-2,1782-96-2
• Citation: 488 S.E.2d 651,25 Va.App. 352
• Parties: Linda Eugene HALL v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 651

488 S.E.2d 651

25 Va.App. 352

Linda Eugene HALL v. COMMONWEALTH of Virginia.

Record No. 1782-96-2.

Court of Appeals of Virginia,

Richmond.

Aug. 5, 1997.

James M. Goff, II, Chesterfield, for appellant.

Margaret Ann B. Walker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: BAKER, BENTON and BRAY, JJ.

BAKER, Judge.

Linda Eugene Hall (appellant) appeals from her bench trial conviction by the Circuit Court of the City of Hopewell for violation of Code § 46.2-852 ¹ (reckless driving). The sole issue presented by this appeal is whether the evidence is sufficient to prove beyond a reasonable doubt that appellant drove a vehicle recklessly on a highway in violation of Code § 46.2-852. We find that the evidence is insufficient and reverse.

Code § 46.2-852 provides:

Reckless driving; general rule.--Irrespective of the maximum speeds permitted by law, any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving.

Upon familiar principles, 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). On August 28, 1995, Hopewell Police Officer Daniel Pisarck (Pisarck) was informed of "a possible broken down vehicle" near the intersection of 6th Street and Route 10 and proceeded to determine the reason for the stopped vehicle. Pisarck testified that at approximately 11:40 p.m., he arrived at the designated location and found appellant's car stopped in the lane of travel on North 6th Avenue. He said that the operator was "passed out" ² behind the wheel and that appellant's car was situated in a "heavily travelled area," particularly at that time of night. Pisarck found that the car's ignition switch and headlights were on, and its battery and alternator indicator lights were illuminated on the instrument panel. Pisarck opined that appellant's car was a traffic hazard which posed a threat to appellant's safety and to the safety of other motorists. However, Pisarck never saw the car in motion prior to or during his investigation. Pisarck confirmed that he had not observed appellant driving the vehicle.

Pisarck tapped on the driver's side window with his flashlight and shined the light in appellant's face attempting to wake her. When she awoke, appellant told him she was "headed home to Chesterfield." Pisarck noted that the direction of her vehicle was such that she was really "coming from Chesterfield." Pisarck noticed a strong odor of alcohol escaping from the vehicle and discovered two open alcoholic beverage containers therein. Appellant admitted she had been drinking. Her speech was slurred and she was unsteady on her feet. Pisarck arrested appellant for driving while intoxicated. Appellant's certificate of breath analysis showed an alcohol content of ".17 grams per 210 liters of breath."

For reasons not disclosed in the record, the prosecutor elected not to proceed on the charge for which appellant was arrested and amended the charge to reckless driving. To support a conviction for reckless driving in violation of Code § 46.2-852, the Commonwealth must prove beyond a reasonable doubt that the accused drove the vehicle in a reckless manner "so as to endanger the life, limb, or property" of another.

The Commonwealth relies upon Kennedy v. Commonwealth, 1 Va.App. 469, 339 S.E.2d 905 (1986), to support appellant's conviction. Kennedy and his family had been on the road for eight hours when Kennedy ran his van off of the road into a wooded median strip. Id. at 470-71, 339 S.E.2d at 906. This Court affirmed Kennedy's conviction even though no eyewitness testimony proved Kennedy drove in a reckless manner. The Court in Kennedy stated that the circumstances of the accident were such as to give rise to an inference that the car had been driven in a reckless manner in violation of the Code. Id. at 472, 339 S.E.2d at 907.

The circumstances in which Pisarck found appellant's car were such as to give rise to an inference that appellant drove her car to the location where Pisarck found her. In fact, we have held in similar circumstances that a defendant could be convicted of driving or operating a motor vehicle while intoxicated. See Propst v. Commonwealth, 24 Va.App. 791, 485 S.E.2d 657 (1997). However, the circumstances in appellant's case do not give rise to an inference that she drove her car in a...