Nelson v. Commonwealth of Va..

• Decision Date: 13 January 2011
• Docket Number: Record No. 100395.
• Citation: 281 Va. 212,707 S.E.2d 815
• Court: Virginia Supreme Court
• Parties: David L. NELSONv.COMMONWEALTH of Virginia.

281 Va. 212

707 S.E.2d 815

David L. NELSON

v.COMMONWEALTH of Virginia.

Record No. 100395.

Supreme Court of Virginia.

Jan. 13, 2011.

Patrick M. Blanch (Elders & Zinicola, on brief), for appellant.Joshua M. Didlake, Assistant Attorney General (Kenneth T. Cuccinelli II, Attorney General, on brief), for appellee.Present: HASSELL, C.J., KOONTZ, KINSER, LEMONS, GOODWYN, and MILLETTE, JJ., and CARRICO, S.J.OPINION BY Senior Justice HARRY L. CARRICO.

In this appeal involving a charge of driving while intoxicated, fourth offense within ten years (Code §§ 18.2–266; 18.2–270(C)(2)), ¹ we decide whether the defendant, David L. Nelson, was “ operating” a motor vehicle within the meaning of Code § 18.2–266. A jury in the Circuit Court of Fairfax County convicted Nelson as charged and fixed his punishment at imprisonment for one year and a fine of $1,000.00. The circuit court imposed the sentence fixed by the jury. In an unpublished opinion, the Court of Appeals of Virginia affirmed the judgment of the circuit court. Nelson v. Commonwealth, Record No. 2102–08–4, 2010 WL 342604 (February 2, 2010). We will affirm the judgment of the Court of Appeals.

BACKGROUND

On September 2, 2007, Master Police Officer Timothy Carl Benedict of the Fairfax County Police Department received a dispatch concerning a suspicious person who had been “sleeping or possibly passed out” in a vehicle for several hours. When he arrived on the scene, Officer Benedict observed Nelson “hunched over” in the driver's seat of a Jeep Grand Cherokee parked on a cul-de-sac in a residential neighborhood. Nelson appeared to be asleep or unconscious with a cell phone up to his ear, but he was not speaking on the phone. Through the open window on the driver's side, Officer Benedict could see that the lights of the “factory mounted radio” inside the vehicle were on and he could hear music but the engine was not running and the gearshift lever was in the “park” position.

Officer Benedict also observed that there was a key in the ignition that appeared to be in the “on or accessory position.” Officer Benedict testified that in this position “the car is not actually running” but it enables one to “run the radio and use things in the car” and in “[t]hat way you don't actually have to have the engine running but you can still use the battery.” Officer Benedict said that to remove the key from the steering column he had to reach through the open window and pull the key backward “to the point where it would actually release.” This movement, Officer Benedict said, turned off the radio.

Officer Benedict also detected the odor of alcohol coming from the car, and he saw a 7–Eleven cup containing a clear liquid in the center console and an empty three-gallon wine jug “in the back seat.” Officer Benedict observed that Nelson had urinated on himself and had dried feces on his legs. Nelson's hair and clothing were disheveled and it “looked like he had been there for a while.”

Officer Benedict attempted to arouse Nelson by tapping on the car. Nelson responded slowly and appeared to be confused. His speech was slurred, his eyes were bloodshot, and he smelled of alcohol, yet he denied having had anything to drink. When he exited the car at Officer Benedict's request, he was unable to stand without holding onto the car, and he failed most of the field sobriety tests he was given by Officer Benedict. When Nelson's blood was tested, his alcohol level was found to be .40, or five times the legal limit. He told Officer Benedict he was renting a room in a nearby house but was not allowed to smoke there and had gone to his car to have a cigarette.

Nelson argues that the evidence was insufficient as a matter of law to convict him of driving while intoxicated because his conduct did not meet the legal standard for operating a motor vehicle. Nelson states that he did not operate his motor vehicle by placing the key in the ignition and activating the radio because neither action alone, or in sequence, will activate the motive power of the vehicle.

STANDARD OF REVIEW

Whether Nelson operated his vehicle within the meaning of Code § 18.2–266 is a mixed question of law and fact which is reviewed de novo on appeal. See Carpitcher v. Commonwealth, 273 Va. 335, 343, 641 S.E.2d 486, 490–91 (2007). “[U]pon appellate review, the evidence and all reasonable inferences flowing therefrom must be viewed in the light most favorable to the prevailing party in the trial court,” in this case, the Commonwealth. See Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). “The judgment of the trial court is presumed to be correct and will be reversed only upon a showing that it is plainly wrong or without evidence to support it.” Id. (internal quotation marks omitted).

ANALYSIS

We have previously reviewed several driving under the influence cases presenting the question whether the defendant was “operating” a vehicle. Convictions were upheld in the following cases: Gallagher v. Commonwealth, 205 Va. 666, 667, 670, 139 S.E.2d 37, 37–38 (1964) (defendant found sitting at steering wheel of car, which was stuck in a ditch with the motor running, the car in gear, and a rear wheel spinning); Nicolls v. Commonwealth, 212 Va. 257, 258–59, 184 S.E.2d 9, 10–11 (1971) (defendant found slumped over steering wheel of car, which was parked on hard surface of highway with motor running, gears engaged, high beam lights on, and heater in operation); Williams v. City of Petersburg, 216 Va. 297, 298, 301, 217 S.E.2d 893, 894, 896 (1975) (defendant found slumped over steering wheel of vehicle on a paved parking lot with motor running, headlights not burning, car doors closed and locked); Lyons v. City of Petersburg, 221 Va. 10, 11–13, 266 S.E.2d 880, 880–82 (1980) (defendant found seated behind steering wheel of car but made no statement about his striking of an unoccupied parked car in the rear and knocking it 25 to 30 feet).

We reversed convictions in the following two cases: Overbee v. Commonwealth, 227 Va. 238, 240, 243, 245, 315 S.E.2d 242, 243–45 (1984) (defendant found standing in front of pickup with hood up, engine not running, key not in ignition); Stevenson v. City of Falls Church, 243 Va. 434, 438, 416 S.E.2d 435, 438 (1992).

Stevenson is the focal point of the argument of the parties in this case. There, in the early morning hours, the defendant was found asleep behind the steering wheel of a car located on a convenience store parking lot. The engine and all other mechanical and electrical parts were turned off. There was a key in the ignition, but the arresting officer could not recall whether the key was in the “on” or the “off” position. 243 Va. at 435, 416 S.E.2d at 436.

We stated as follows:

In Williams, ... we pointed out that “operating” 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. It means engaging the machinery of the vehicle which alone, or in sequence, will activate the motive power of the vehicle.

....

We adhere to our holding in Williams and apply it here. It was not recalled whether the key was in the “on” or “off” position. And, on appeal, we must assume that the key was in the off position.

Because the presence of the key in the ignition switch in the off position did not engage the mechanical or electrical equipment of Stevenson's car, Stevenson did not “drive or operate” the car within the meaning of the statutes that were incorporated by reference in the Falls Church ordinance.

Id. at 438, 416 S.E.2d at 438 (emphasis and internal quotation marks omitted).

Nelson says that Stevenson is indistinguishable and that we must assume here, as we did there, that the ignition key in the offending car was in the “off” position. Therefore, Nelson continues, we must hold here that because the ignition key was in the off position he did not engage the mechanical or electrical equipment of his car and did not “drive or operate” the car within the meaning of Code § 18.2–266.

We disagree that we must assume that the ignition key in Nelson's car was in the “off” position. Nelson states on brief that Officer Benedict “could not recall what position the key was in.” This is an incorrect statement. Officer Benedict never said he could not recall the status of the ignition key. Rather, he stated unequivocally that the key was in the “on or accessory” position, and his testimony left no doubt it was the key, whether in an “on” position or an “accessory” position, that turned on the “factory mounted radio.”

Nelson states, however, that the Commonwealth's evidence did not exclude the “reasonable hypothesis” that his “vehicle could have been one of many models in which a key is not required to activate the radio.” (Emphasis added.) Nelson also says that the Commonwealth's evidence “did not preclude the possibility that Mr. Nelson's car was one of [the] many with a safety feature requiring the key to be turned backward from the ‘off’ position before it will release.” (Emphasis added.) But there was no burden on the Commonwealth to negate what “could have been” or what was a “possibility.” ²

Nelson argues that “[e]ven if this Court finds that the key was not in the ‘off’ position, Mr. Nelson still was not operating a motor vehicle.” “There is no meaningful distinction,” Nelson says, “between the act of putting the key into the ignition slot and the act of turning it forward or backward to operate the accessories.” “In either case,” Nelson continues, “there is no nexus between Mr. Nelson's action and the motive power of the vehicle because activating the radio is not part of the sequence of activating the motive power of the vehicle.” Nelson concludes that “[b]y holding in Stevenson that putting a key in the ignition is not operating, [this...