DUI Conviction Upheld for Vehicle Seat-Switcher
By Deborah Elkins
Published: June 14, 2011
Tags: Supreme Court of Virginia, Traffic OffensesPublished: June 14, 2011
The Supreme Court of Virginia says an intoxicated defendant who switched seats with the person who was driving a vehicle stopped by police, because defendant feared the actual driver would be deported if arrested, can be convicted of driving under the influence because she was an “operator” of the vehicle under Virginia law.
This appeal presents only the question of the legal conclusion to be drawn from the uncontested facts. The defendant does not question the sufficiency of the evidence of the degree of her intoxication, but contends she was not the operator of a motor vehicle within the meaning of the relevant statutes.
Virginia Code § 18.2-266 makes it unlawful to “drive or operate” a motor vehicle while under the influence of alcohol to a degree that impairs one’s ability to drive safely. Code § 46.2-100 includes within the definition of an “operator” of a motor vehicle any person who “is in actual physical control of a motor vehicle on a highway.” Our inquiry is therefore whether defendant was in actual physical control of the vehicle.
We recently reviewed our decisions considering variations on this theme in Nelson v. Commonwealth, 281 Va. 212 (2011).
In the present case, we do not reach the question whether the defendant took some action which, in sequence, would have activated the motive power of the vehicle. Its motive power was already activated.
While the officer watched, defendant took actual physical control of a fully operational motor vehicle in a highway, with its ignition key in the “on” position and its engine running. She thus met the statutory definition of an “operator” of a motor vehicle.
This court affirms the judgment of the Court of Appeals upholding the conviction. Appellant shall pay to the commonwealth $250 damages.
Rix v. Commonwealth, No. 101737, June 9, 2011; Va.Ct.App. VLW 011-6-094, 5 pp.
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