Sarafin v. Commonwealth
| Decision Date | 31 October 2014 |
| Docket Number | Record No. 131747. |
| Citation | 288 Va. 320,764 S.E.2d 71 |
| Court | Virginia Supreme Court |
| Parties | Justin SARAFIN v. COMMONWEALTH of Virginia. |
David L. Heilberg (Dygert, Wright, Hobbs & Heilberg, Charlottesville, on briefs), for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: All the Justices.
In this opinion we consider the definition of “operate” and whether such operation must be “on a highway” to sustain a conviction for driving under the influence pursuant to Code § 18.2–266.
On January 20, 2011, Officer K.E. McBrearty of the Charlottesville Police Department responded to a noise complaint at 1001 Page Street in Charlottesville. When Officer McBrearty arrived at the scene, she observed Justin Sarafin (“Sarafin”) sitting in the driver's seat of his vehicle, which was parked in his private driveway. Sarafin was asleep—although the key was in the ignition and was turned backward to activate the vehicle's auxiliary power. McBrearty knocked on the window and Sarafin awoke, turned off the vehicle's auxiliary power, and exited the vehicle.
Once Sarafin was outside the vehicle, McBrearty smelled alcohol and noticed his eyes were bloodshot and glassy. She questioned Sarafin about his activities that evening, and he admitted to consuming several beers at a local pub, picking up dinner at a different location, driving home, consuming more alcohol, and then returning to his vehicle to listen to the radio. Sarafin stated he never intended to leave his driveway and, in fact, had fallen asleep around 2:30 a.m. while listening to music.
Officer McBrearty administered several field sobriety tests. Sarafin failed three out of five. Officer McBrearty also administered a preliminary breath test and, based on those results, arrested Sarafin for operating a vehicle under the influence of alcohol in violation of Code § 18.2–266.
Sarafin's first trial in the Circuit Court for the City of Charlottesville (“circuit court”) resulted in a hung jury. Prior to his second trial, Sarafin filed a motion requesting a determination of the legal definition of “operate” and “operation.” He then filed a pretrial “motion to strike,” arguing he could not be convicted under Code § 18.2–266 because he was on private property and, alternatively, there was no evidence that he ever intended to activate the motive power of the vehicle. The circuit court never addressed Sarafin's pre-trial motions, and the case proceeded to trial.
Following the Commonwealth's case-in-chief, Sarafin moved to strike the evidence. The circuit court took this motion under advisement. Sarafin presented several witnesses, testified on his own behalf and renewed his motion to strike which the circuit court again took under advisement. He then proposed jury instructions I, J, K and L.1 The circuit court refused Sarafin's instructions and granted the Commonwealth's Instruction 6 over his objections.
The jury returned a guilty verdict and affixed punishment at a $500 fine. In its conviction order dated November 7, 2012, the circuit court imposed the jury's verdict and, in addition, revoked Sarafin's operator's license for 12 months.2
Sarafin appealed his conviction to the Court of Appeals of Virginia, arguing that there was insufficient evidence to convict him of violating Code § 18.2–266 because he was not “operating” the vehicle on a highway, and that the circuit court erred by refusing his jury instructions. In its published opinion, Sarafin v. Commonwealth, 62 Va.App. 385, 748 S.E.2d 641 (2013), the Court of Appeals affirmed Sarafin's conviction.
The Court of Appeals held that under this Court's precedents, Sarafin had actual physical control of the vehicle and was therefore “operating” his vehicle within the meaning of Code § 18.2–266. Sarafin, 62 Va.App. at 393–402, 748 S.E.2d at 645–49 (citing Enriquez v. Commonwealth, 283 Va. 511, 516–17, 722 S.E.2d 252, 255 (2012) ). Citing some of its earlier decisions, the Court of Appeals held that “public ownership of the property upon which the vehicle is driven or operated is not an element the Commonwealth must prove in a prosecution for driving in violation of Code § 18.2–266.” Id. at 398, 748 S.E.2d at 647 (quoting Mitchell v. Commonwealth, 26 Va.App. 27, 35, 492 S.E.2d 839, 843 (1997) )(citing Gray v. Commonwealth, 23 Va.App. 351, 353, 477 S.E.2d 301, 302–03 (1996) ). The Court of Appeals concluded that any reference to “on a highway” in Enriquez, 283 Va. at 516–17, 722 S.E.2d at 255, was dicta. Sarafin, 62 Va.App. at 400–01, 748 S.E.2d at 648. Based on these definitional holdings, the Court of Appeals affirmed the circuit court's refusal of Sarafin's proffered jury instructions. Id. at 402–03, 748 S.E.2d at 649.
Sarafin appealed the judgment of the Court of Appeals to this Court, and we awarded an appeal on the following assignments of error:
Assignments of error 1 and 2 require us to interpret the meaning of “operate [a] motor vehicle” as used in Code § 18.2–266 and whether “operation” on private property is within the scope of the statute. Questions of statutory interpretation are reviewed de novo. Belew v. Commonwealth, 284 Va. 173, 177, 726 S.E.2d 257, 259 (2012). Whether Sarafin operated his vehicle in a manner which violated Code § 18.2–266 is a mixed question of law and fact which is reviewed de novo. Nelson v. Commonwealth, 281 Va. 212, 215, 707 S.E.2d 815, 816 (2011).
Sarafin's third assignment of error focuses upon the circuit court's refusal of Jury Instructions I, J, K and L. As a general rule, the decision to grant or deny proffered instructions rests within the sound discretion of the trial court.See Daniels v. Commonwealth, 275 Va. 460, 466, 657 S.E.2d 84, 87 (2008). However, “whether a jury instruction accurately states the relevant law is a question of law that we review de novo.” Lawlor v. Commonwealth, 285 Va. 187, 228, 738 S.E.2d 847, 870 (2013) (quoting Orthopedic & Sports Physical Therapy Assocs., Inc. v. Summit Group Props., LLC, 283 Va. 777, 782, 724 S.E.2d 718, 721 (2012) ). In deciding whether a particular instruction is proper, we view the facts in the light most favorable to the proponent of the instruction. See Commonwealth v. Cary, 271 Va. 87, 91, 623 S.E.2d 906, 907 (2006).
Code § 18.2–266 provides, in relevant part:
It shall be unlawful for any person to drive or operate any motor vehicle, engine or train ... while such person is under the influence of alcohol.... For the purposes of this article, the term “motor vehicle” includes mopeds, while operated on the public highways of this Commonwealth.
Sarafin's appeal involves two basic inquiries: (1) the definition of “operate,” and (2) whether operation must occur on a highway to sustain a conviction under 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. See, e.g., Enriquez, 283 Va. at 511, 722 S.E.2d at 252 ; Nelson, 281 Va. at 214, 219, 707 S.E.2d at 815, 818 ; Nicolls v. Commonwealth, 212 Va. 257, 258–259, 184 S.E.2d 9, 10–11 (1971) ; Gallagher v. Commonwealth, 205 Va. 666, 667, 670, 139 S.E.2d 37, 38, 40 (1964). In Nelson, we addressed a factual scenario remarkably similar to this case. Nelson was asleep inside his vehicle which was parked in the cul-de-sac of a residential neighborhood. 281 Va. at 214, 707 S.E.2d at 816. The ignition was in the auxiliary position, and the radio was playing. Id. Nelson argued that, based on these facts, he was not operating his motor vehicle. Id. at 215, 707 S.E.2d at 816. We disagreed, holding that:
“Operating” means “engaging the machinery of the vehicle which alone, or in sequence, will activate the motive power of the vehicle.” Manipulating the electrical equipment was one step between the “off” position and the point at which the motive power would be activated. While Nelson's action in turning the key to the “on” or “accessory” position of the ignition did not alone activate the motive power, it was an action taken “in sequence” up to the point of activation, making him the operator of the vehicle within the meaning of Code § 18.2–266.
Nelson, 281 Va. at 219, 707 S.E.2d at 818 (internal citation omitted).
Just a year after deciding Nelson, we again addressed the meaning of “operate” in Enriquez. We stated that “any individual who is in actual physical control of a vehicle is an operator.” Enriquez, 283 Va. at 516, 722 S.E.2d at 255 (internal quotation marks omitted). In defining “actual physical control,” we embraced the dissenting opinion in Stevenson v. City of Falls Church, 243 Va. 434, 439–40, 416 S.E.2d 435, 438–39 (1992) (Compton, J., dissenting), which stated:
Ordinary experience tells us that one in a drunken stupor in the driver's seat of a vehicle is likely to arouse abruptly, engage the motive power of the vehicle, and roar away imperiling the lives of innocent citizens. This sequence of events easily can occur where, as here, a drunk is sitting behind the steering wheel of a motor vehicle alone, with the key already in the ignition. From a...
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