COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Clements and Senior Judge Coleman Argued at Richmond, Virginia
DEBBIE DENISE FLOYD MEMORANDUM OPINION * BY v. Record No. 0568-01-2 JUDGE JEAN HARRISON CLEMENTS JULY 30, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Cleo E. Powell, Judge
Randy B. Rowlett (Gordon, Dodson & Gordon, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.
Debbie Denise Floyd was convicted in a bench trial of
operating a motor vehicle under the influence of alcohol, in
violation of Code § 18.2-266, her third such offense within ten
years. On appeal, she contends the evidence was insufficient,
as a matter of law, to sustain the conviction because it failed
to prove she was "operating" a motor vehicle. We disagree and
affirm the conviction.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. proceedings as necessary to the parties' understanding of the
disposition of this appeal.
I. BACKGROUND
The facts before us are not in dispute. On the morning of
April 30, 2000, Trooper Shawn T. Rivard of the Virginia State
Police was dispatched to a disabled vehicle on Chippenham
Parkway in Chesterfield County. When he arrived at the scene,
Trooper Rivard observed a car broken down in the far right
travel lane of the road with its hood up. Floyd was standing in
front of the car looking under the hood. The car was not
running. There was no evidence regarding how the car had
arrived at that location or how long it had been there.
When asked by Rivard if the vehicle would start, Floyd said
it would not. Rivard then "asked her to try to start it so
[they] could move it" off the roadway. Floyd got in the
driver's seat and "attempted to start" the car, but, when she
"operat[ed] the ignition," the car's engine only clicked,
without starting. Rivard then used his police vehicle to push
Floyd's car onto the road's shoulder.
Once Floyd's car was off the road, Rivard called Floyd back
to his vehicle to arrange for the dispatch of a wrecker. As
they sat in his vehicle, Rivard smelled a strong odor of alcohol
emanating from Floyd. In response to Rivard's inquiry, Floyd
told the officer she had had three beers that morning.
- 2 - After administering field sobriety tests to Floyd, Rivard
placed her under arrest for driving under the influence. A
subsequent breath analysis test showed Floyd had a blood alcohol
concentration of 0.18 grams per 210 liters of breath.
Finding that, in turning the key in the ignition in an
attempt to start her disabled car, Floyd was operating a motor
vehicle, the trial court convicted Floyd of driving under the
influence of alcohol in violation of Code § 18.2-266. Because
it was Floyd's third such offense within ten years, the offense
was a felony under Code § 18.2-270. The trial court sentenced
her to five years in prison, suspending all but ten days of the
sentence. This appeal followed.
II. ANALYSIS
When the sufficiency of the evidence is challenged on
appeal, we determine whether the evidence, viewed in the light
most favorable to the Commonwealth, the party prevailing below,
and the reasonable inferences fairly deducible from that
evidence support each and every element of the charged offense.
See Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740
(1997); Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662,
668 (1991). In doing so, we must "regard as true all the
credible evidence favorable to the Commonwealth and all fair
inferences that may be drawn therefrom." Watkins v.
Commonwealth, 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998).
We are further mindful that the "credibility of a witness, the
- 3 - weight accorded the testimony, and the inferences to be drawn from
proven facts are matters solely for the fact finder's
determination." Crawley v. Commonwealth, 29 Va. App. 372, 375,
512 S.E.2d 169, 170 (1999). We will not reverse the judgment of
the trial court unless it is plainly wrong or without evidence
to support it. See Martin v. Commonwealth, 4 Va. App. 438, 443,
358 S.E.2d 415, 418 (1987).
Code § 18.2-266 provides, in pertinent part, that "[i]t
shall be unlawful for any person to . . . operate any motor
vehicle . . . while such person has a blood alcohol
concentration of . . . 0.08 grams or more per 210 liters of
breath." Code § 46.2-100 defines "operator," in pertinent part,
as one who "drives or is in actual physical control of a motor
vehicle upon a highway."
On appeal, Floyd challenges the sufficiency of the evidence
to prove she was "operating" a motor vehicle within the
proscription of the drunk driving statute. The Commonwealth's
evidence, she argues, failed to show she was engaging the car's
machinery or otherwise operating her inoperable car. The fact
that Trooper Rivard heard clicking sounds coming from the car's
engine was insufficient, by itself, she claims, to establish her
conduct was within the purview of the statute. Furthermore, she
argues, even if the evidence were sufficient to establish she was
engaging the car's machinery, "because she was placed behind the
wheel of the automobile on directive of [Trooper Rivard]," any
- 4 - operation of the car occurred while the car was under Rivard's
control, not hers. Accordingly, she reasons, the trial court
erred in finding that she was operating the car. We disagree.
Within the meaning of Code § 18.2-266, "operating" a vehicle
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.
Williams v. City of Petersburg, 216 Va. 297, 300, 217 S.E.2d 893,
896 (1975) (emphasis added). Furthermore, "a vehicle need not be
functional in the sense of being able to move from place to place
in order to be 'operated.'" Keesee v. Commonwealth, 32 Va. App.
263, 268, 527 S.E.2d 473, 476 (2000).
Here, viewed in the light most favorable to the
Commonwealth, the evidence and the reasonable inferences fairly
deducible therefrom establish that, following Trooper Rivard's
arrival at the scene, Floyd got into her car, which had broken
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Clements and Senior Judge Coleman Argued at Richmond, Virginia
DEBBIE DENISE FLOYD MEMORANDUM OPINION * BY v. Record No. 0568-01-2 JUDGE JEAN HARRISON CLEMENTS JULY 30, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Cleo E. Powell, Judge
Randy B. Rowlett (Gordon, Dodson & Gordon, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.
Debbie Denise Floyd was convicted in a bench trial of
operating a motor vehicle under the influence of alcohol, in
violation of Code § 18.2-266, her third such offense within ten
years. On appeal, she contends the evidence was insufficient,
as a matter of law, to sustain the conviction because it failed
to prove she was "operating" a motor vehicle. We disagree and
affirm the conviction.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. proceedings as necessary to the parties' understanding of the
disposition of this appeal.
I. BACKGROUND
The facts before us are not in dispute. On the morning of
April 30, 2000, Trooper Shawn T. Rivard of the Virginia State
Police was dispatched to a disabled vehicle on Chippenham
Parkway in Chesterfield County. When he arrived at the scene,
Trooper Rivard observed a car broken down in the far right
travel lane of the road with its hood up. Floyd was standing in
front of the car looking under the hood. The car was not
running. There was no evidence regarding how the car had
arrived at that location or how long it had been there.
When asked by Rivard if the vehicle would start, Floyd said
it would not. Rivard then "asked her to try to start it so
[they] could move it" off the roadway. Floyd got in the
driver's seat and "attempted to start" the car, but, when she
"operat[ed] the ignition," the car's engine only clicked,
without starting. Rivard then used his police vehicle to push
Floyd's car onto the road's shoulder.
Once Floyd's car was off the road, Rivard called Floyd back
to his vehicle to arrange for the dispatch of a wrecker. As
they sat in his vehicle, Rivard smelled a strong odor of alcohol
emanating from Floyd. In response to Rivard's inquiry, Floyd
told the officer she had had three beers that morning.
- 2 - After administering field sobriety tests to Floyd, Rivard
placed her under arrest for driving under the influence. A
subsequent breath analysis test showed Floyd had a blood alcohol
concentration of 0.18 grams per 210 liters of breath.
Finding that, in turning the key in the ignition in an
attempt to start her disabled car, Floyd was operating a motor
vehicle, the trial court convicted Floyd of driving under the
influence of alcohol in violation of Code § 18.2-266. Because
it was Floyd's third such offense within ten years, the offense
was a felony under Code § 18.2-270. The trial court sentenced
her to five years in prison, suspending all but ten days of the
sentence. This appeal followed.
II. ANALYSIS
When the sufficiency of the evidence is challenged on
appeal, we determine whether the evidence, viewed in the light
most favorable to the Commonwealth, the party prevailing below,
and the reasonable inferences fairly deducible from that
evidence support each and every element of the charged offense.
See Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740
(1997); Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662,
668 (1991). In doing so, we must "regard as true all the
credible evidence favorable to the Commonwealth and all fair
inferences that may be drawn therefrom." Watkins v.
Commonwealth, 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998).
We are further mindful that the "credibility of a witness, the
- 3 - weight accorded the testimony, and the inferences to be drawn from
proven facts are matters solely for the fact finder's
determination." Crawley v. Commonwealth, 29 Va. App. 372, 375,
512 S.E.2d 169, 170 (1999). We will not reverse the judgment of
the trial court unless it is plainly wrong or without evidence
to support it. See Martin v. Commonwealth, 4 Va. App. 438, 443,
358 S.E.2d 415, 418 (1987).
Code § 18.2-266 provides, in pertinent part, that "[i]t
shall be unlawful for any person to . . . operate any motor
vehicle . . . while such person has a blood alcohol
concentration of . . . 0.08 grams or more per 210 liters of
breath." Code § 46.2-100 defines "operator," in pertinent part,
as one who "drives or is in actual physical control of a motor
vehicle upon a highway."
On appeal, Floyd challenges the sufficiency of the evidence
to prove she was "operating" a motor vehicle within the
proscription of the drunk driving statute. The Commonwealth's
evidence, she argues, failed to show she was engaging the car's
machinery or otherwise operating her inoperable car. The fact
that Trooper Rivard heard clicking sounds coming from the car's
engine was insufficient, by itself, she claims, to establish her
conduct was within the purview of the statute. Furthermore, she
argues, even if the evidence were sufficient to establish she was
engaging the car's machinery, "because she was placed behind the
wheel of the automobile on directive of [Trooper Rivard]," any
- 4 - operation of the car occurred while the car was under Rivard's
control, not hers. Accordingly, she reasons, the trial court
erred in finding that she was operating the car. We disagree.
Within the meaning of Code § 18.2-266, "operating" a vehicle
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.
Williams v. City of Petersburg, 216 Va. 297, 300, 217 S.E.2d 893,
896 (1975) (emphasis added). Furthermore, "a vehicle need not be
functional in the sense of being able to move from place to place
in order to be 'operated.'" Keesee v. Commonwealth, 32 Va. App.
263, 268, 527 S.E.2d 473, 476 (2000).
Here, viewed in the light most favorable to the
Commonwealth, the evidence and the reasonable inferences fairly
deducible therefrom establish that, following Trooper Rivard's
arrival at the scene, Floyd got into her car, which had broken
down in a travel lane of the road, and, while sitting in the
driver's seat, turned the key in the car's ignition in an
attempt to start the car. In response, the car's engine made a
clicking sound but did not start.
In operating the ignition switch of her car, Floyd plainly
manipulated the mechanical or electrical equipment of her car and
engaged the machinery of the car which alone, or in sequence,
- 5 - would activate the car's motive power. The fact that the car did
not actually start is not dispositive. See, e.g., id. (holding
that, even though the vehicle's motor was not running, evidence
that the accused was alone in the vehicle, the key was in the
ignition, the vehicle was in gear, and one of the vehicle's
taillights was illuminated was sufficient to find that the accused
was "operating" the vehicle within the proscription of Code
§ 18.2-266). Hence, we conclude that Floyd's conduct constituted
"operating" a motor vehicle under Code § 18.2-266.
As for Floyd's argument that she was not in actual physical
control of her car because she was directed to start the car by
Trooper Rivard, we find that such a contention is without merit
because its premise is erroneous. Rivard did not direct,
instruct, order, or otherwise require Floyd to start her car.
According to Rivard's uncontradicted testimony, he merely "asked
her to try to start it so [they] could move it" off the roadway,
unaware at the time that Floyd was intoxicated. Knowing she was
intoxicated, Floyd, who was under no compulsion to accede to
Rivard's request, could and should have declined the trooper's
request.
We hold, therefore, that the evidence presented was
sufficient, as a matter of law, to prove beyond a reasonable doubt
that Floyd was "operating" a motor vehicle within the meaning of
Code § 18.2-266. Accordingly, we affirm Floyd's conviction.
Affirmed.
- 6 -