By Deborah Elkins
Published: January 19, 2011
A defendant discovered passed-out behind the wheel of a vehicle, with the key in the ignition turned to the “on” or “accessory” position, was “operating” the vehicle under Virginia law, and the Supreme Court of Virginia affirms his conviction of DUI, fourth offense within 10 years.
We have previously reviewed several driving under the influence cases presenting the question whether the defendant was “operating” a vehicle. One of those, Stevenson v. City of Falls Church, 243 Va. 434 (1992), is the focal point of the parties’ argument in this case. Under Stevenson, defendant argues, we must hold 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 defendant’s car was in the “off” position. The officer 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.”
Stevenson does not support defendant’s claim that “activating the radio is not part of the sequence of activating the motive power of the vehicle.” The question of whether the motive power was activated was not reached in Stevenson.
Here, the key was not in the “off” position but in an “on or accessory position.” Defendant turned on the radio by placing the key in the latter position, and his action constituted manipulating the electrical equipment of the vehicle. 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 defendant’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.
Koontz, J.: I respectfully dissent. Today the majority permits the defendant to be convicted of violating Code § 18.2-266 where defendant, while occupying the vehicle and under the influence of alcohol, was merely listening to the vehicle’s radio. Manipulating the key to the ignition of the vehicle so that the vehicle’s radio functioned would not and could not “alone” activate the motive power of the vehicle. Nor could that act in sequence do so. It is a matter of common understanding and experience that the key had to be placed in the position engineered to activate the motive power of the vehicle rather than the position of the key engineered to activate the vehicle’s radio.
I would reverse the Court of Appeals judgment affirming defendant’s conviction for violating Code § 18.2-266 and vacate that conviction.
Nelson v. Commonwealth (Carrico, J.) No. 100395, Jan. 13, 2011; Va.Ct.App.; Patrick M. Blanch for appellant; Joshua M. Didlake, AAG; Kenneth T. Cuccinelli II, AG, for appellee. VLW 011-6-021, 13 pp.