PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and McClanahan, JJ., and Carrico, S.J.
JEAN PAUL ENRIQUEZ OPINION BY SENIOR JUSTICE HARRY L. CARRICO v. Record No. 110818 March 2, 2012
COMMONWEALTH OF VIRGINA
FROM THE COURT OF APPEALS OF VIRGINIA
This is the most recent example in a series of cases
involving convictions for the offense of driving or operating a
motor vehicle while under the influence of alcohol where the
accused is found in a drunken condition in a parked motor
vehicle with the keys in the ignition switch. In all but two of
the cases, we sustained the convictions. We will add this case
to the list of sustained convictions.
In a bench trial, the defendant, Jean Paul Enriquez, was
convicted of driving or operating a motor vehicle while under
the influence of alcohol in violation of Code § 18.2-266.
Because this was a second offense for Enriquez within five
years, the circuit court sentenced him pursuant to the mandatory
provisions of Code § 18.2-270. This resulted in a term of
confinement in the city jail for twelve months and a fine of
$500.00, with all but sixty days of the jail sentence suspended
on condition of good behavior for two years. The court also
revoked Enriquez’s operator’s license for three years. Enriquez appealed his conviction to the Court of Appeals of
Virginia. In an unpublished opinion, the Court of Appeals
affirmed the conviction. Enriquez v. Commonwealth, Record No.
0463-10-4 (April 5, 2011). We awarded Enriquez this appeal.
His sole contention is that the evidence was insufficient to
convict him as matter of law of operating a motor vehicle while
under the influence of alcohol.
BACKGROUND
About 3:00 a.m. on September 18, 2009, Thomas Feeney, a
parking enforcement officer in the City of Alexandria, observed
a Toyota automobile illegally parked in a bus stop in the 6000
block of Lincolnia Road. While seated in his cruiser, Feeney
wrote a ticket for the offense. When he approached the Toyota
to place the ticket under the windshield wiper, he could hear
the car’s radio playing, and he saw a man in the driver’s seat,
apparently asleep. After repeated efforts, Feeney was unable to
arouse the man, and he called for help from the Police
Department.
Officer Aloysius Asonglefac and Sergeant May of the
Alexandria Police Department were dispatched to the Lincolnia
Road site for "trouble unknown." Officer Asonglefac testified
that when he arrived he found Enriquez "sleeping behind the
wheel" of the Toyota parked in the bus stop.
2 Officer Asonglefac, Sergeant May, and Parking Enforcement
Officer Feeney "knocked on . . . the driver's side window" and
"the sun roof and roof" of the car without arousing Enriquez.
Officer Feeney shone a flashlight on Enriquez's face, with no
effect. In two to three minutes, Enriquez awoke, and, after
several requests, opened the side door window. Officer
Asonglefac "could smell a strong odor of alcoholic beverage" and
"a strong odor of marijuana" coming from the car. Enriquez
appeared "confused," "didn't seem to [k]now where he was,"
thought "he was in Arlington," was "going to see his girlfriend"
but was not sure "as to where his girlfriend was." Officer
Asonglefac administered field sobriety tests to Enriquez, but
before the tests began he was asked whether he had been drinking
that evening. Initially, he said he had not been drinking but
then stated that he had a “Long Island Iced Tea about an hour
prior to [his] encounter" with the police. When he failed the
field sobriety tests, Officer Asonglefac placed him under arrest
for driving under the influence.
When he first approached the Toyota, Officer Asonglefac
could hear the radio playing and "could see the light from the
radio area." He observed that the keys were in the ignition,
but he could not recall whether the keys were in the "on" or the
"off" position. Neither could he remember who removed the keys
3 from the ignition, but he was certain that "[w]hen the keys were
removed from the ignition, the radio went off."
STANDARD OF REVIEW
Whether Enriquez 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. Upon 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. 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. Nelson v. Commonwealth, 281 Va. 212, 215, 707
S.E.2d 815, 816 (2011).
ANALYSIS
As noted earlier, we have previously considered the
question whether an intoxicated accused has driven or operated a
motor vehicle within the meaning of Code § 18.2-266. We upheld
convictions in the following cases: Gallagher v. Commonwealth,
205 Va. 666, 667, 670, 139 S.E.2d 37, 38, 40 (1964) (drunk
defendant found sitting at the steering wheel of a 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, 259, 184 S.E.2d 9, 10, 11 (1971) (drunk defendant
found slumped over steering wheel of car, which was parked on
4 hard surface of road with motor running, 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) (drunk
defendant found slumped over steering wheel of vehicle on a
paved parking lot with motor running, headlights not on, car
doors closed and locked); Lyons v. City of Petersburg, 221 Va.
10, 11-13, 266 S.E.2d 880, 880-82 (1980) (drunk defendant found
seated behind steering wheel of car but made no statement about
his striking of an unoccupied parked car in the rear and pushing
it 25 to 30 feet); Nelson v. Commonwealth, 281 Va. 212, 214-15,
219, 707 S.E.2d 815, 815-16, 818 (2011) (drunk defendant found
hunched over in the driver's seat of a vehicle parked on a cul-
de-sac with the radio playing and the ignition key in an "on or
accessory position"); Rix v. Commonwealth, 282 Va. 1, 1, 3, 714
S.E.2d 561, 561-62 (2011) (drunk defendant exchanged seats with
driver and was found by police sitting behind the steering wheel
with keys in the ignition and the engine running).
We reversed convictions in the following two cases:
Overbee v. Commonwealth, 227 Va. 238, 240-41, 245, 315 S.E.2d
242, 243, 245 (1984) (drunk defendant found standing in front of
a pickup truck with the hood up, engine not running, and key not
in ignition); Stevenson v. City of Falls Church, 243 Va. 434,
435-36, 438, 416 S.E.2d 435, 436, 438 (1992) (in early morning
Free access — add to your briefcase to read the full text and ask questions with AI
PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and McClanahan, JJ., and Carrico, S.J.
JEAN PAUL ENRIQUEZ OPINION BY SENIOR JUSTICE HARRY L. CARRICO v. Record No. 110818 March 2, 2012
COMMONWEALTH OF VIRGINA
FROM THE COURT OF APPEALS OF VIRGINIA
This is the most recent example in a series of cases
involving convictions for the offense of driving or operating a
motor vehicle while under the influence of alcohol where the
accused is found in a drunken condition in a parked motor
vehicle with the keys in the ignition switch. In all but two of
the cases, we sustained the convictions. We will add this case
to the list of sustained convictions.
In a bench trial, the defendant, Jean Paul Enriquez, was
convicted of driving or operating a motor vehicle while under
the influence of alcohol in violation of Code § 18.2-266.
Because this was a second offense for Enriquez within five
years, the circuit court sentenced him pursuant to the mandatory
provisions of Code § 18.2-270. This resulted in a term of
confinement in the city jail for twelve months and a fine of
$500.00, with all but sixty days of the jail sentence suspended
on condition of good behavior for two years. The court also
revoked Enriquez’s operator’s license for three years. Enriquez appealed his conviction to the Court of Appeals of
Virginia. In an unpublished opinion, the Court of Appeals
affirmed the conviction. Enriquez v. Commonwealth, Record No.
0463-10-4 (April 5, 2011). We awarded Enriquez this appeal.
His sole contention is that the evidence was insufficient to
convict him as matter of law of operating a motor vehicle while
under the influence of alcohol.
BACKGROUND
About 3:00 a.m. on September 18, 2009, Thomas Feeney, a
parking enforcement officer in the City of Alexandria, observed
a Toyota automobile illegally parked in a bus stop in the 6000
block of Lincolnia Road. While seated in his cruiser, Feeney
wrote a ticket for the offense. When he approached the Toyota
to place the ticket under the windshield wiper, he could hear
the car’s radio playing, and he saw a man in the driver’s seat,
apparently asleep. After repeated efforts, Feeney was unable to
arouse the man, and he called for help from the Police
Department.
Officer Aloysius Asonglefac and Sergeant May of the
Alexandria Police Department were dispatched to the Lincolnia
Road site for "trouble unknown." Officer Asonglefac testified
that when he arrived he found Enriquez "sleeping behind the
wheel" of the Toyota parked in the bus stop.
2 Officer Asonglefac, Sergeant May, and Parking Enforcement
Officer Feeney "knocked on . . . the driver's side window" and
"the sun roof and roof" of the car without arousing Enriquez.
Officer Feeney shone a flashlight on Enriquez's face, with no
effect. In two to three minutes, Enriquez awoke, and, after
several requests, opened the side door window. Officer
Asonglefac "could smell a strong odor of alcoholic beverage" and
"a strong odor of marijuana" coming from the car. Enriquez
appeared "confused," "didn't seem to [k]now where he was,"
thought "he was in Arlington," was "going to see his girlfriend"
but was not sure "as to where his girlfriend was." Officer
Asonglefac administered field sobriety tests to Enriquez, but
before the tests began he was asked whether he had been drinking
that evening. Initially, he said he had not been drinking but
then stated that he had a “Long Island Iced Tea about an hour
prior to [his] encounter" with the police. When he failed the
field sobriety tests, Officer Asonglefac placed him under arrest
for driving under the influence.
When he first approached the Toyota, Officer Asonglefac
could hear the radio playing and "could see the light from the
radio area." He observed that the keys were in the ignition,
but he could not recall whether the keys were in the "on" or the
"off" position. Neither could he remember who removed the keys
3 from the ignition, but he was certain that "[w]hen the keys were
removed from the ignition, the radio went off."
STANDARD OF REVIEW
Whether Enriquez 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. Upon 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. 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. Nelson v. Commonwealth, 281 Va. 212, 215, 707
S.E.2d 815, 816 (2011).
ANALYSIS
As noted earlier, we have previously considered the
question whether an intoxicated accused has driven or operated a
motor vehicle within the meaning of Code § 18.2-266. We upheld
convictions in the following cases: Gallagher v. Commonwealth,
205 Va. 666, 667, 670, 139 S.E.2d 37, 38, 40 (1964) (drunk
defendant found sitting at the steering wheel of a 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, 259, 184 S.E.2d 9, 10, 11 (1971) (drunk defendant
found slumped over steering wheel of car, which was parked on
4 hard surface of road with motor running, 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) (drunk
defendant found slumped over steering wheel of vehicle on a
paved parking lot with motor running, headlights not on, car
doors closed and locked); Lyons v. City of Petersburg, 221 Va.
10, 11-13, 266 S.E.2d 880, 880-82 (1980) (drunk defendant found
seated behind steering wheel of car but made no statement about
his striking of an unoccupied parked car in the rear and pushing
it 25 to 30 feet); Nelson v. Commonwealth, 281 Va. 212, 214-15,
219, 707 S.E.2d 815, 815-16, 818 (2011) (drunk defendant found
hunched over in the driver's seat of a vehicle parked on a cul-
de-sac with the radio playing and the ignition key in an "on or
accessory position"); Rix v. Commonwealth, 282 Va. 1, 1, 3, 714
S.E.2d 561, 561-62 (2011) (drunk defendant exchanged seats with
driver and was found by police sitting behind the steering wheel
with keys in the ignition and the engine running).
We reversed convictions in the following two cases:
Overbee v. Commonwealth, 227 Va. 238, 240-41, 245, 315 S.E.2d
242, 243, 245 (1984) (drunk defendant found standing in front of
a pickup truck with the hood up, engine not running, and key not
in ignition); Stevenson v. City of Falls Church, 243 Va. 434,
435-36, 438, 416 S.E.2d 435, 436, 438 (1992) (in early morning
hours, drunk defendant found asleep behind steering wheel of car
5 parked on convenience store parking lot, engine and all other
mechanical and electrical parts turned off, and key in the
ignition, but arresting officer could not recall whether key was
in the "on" or the "off" position. In reversing, this Court
said it would assume the key was in the "off" position.)
Enriquez argues that his case is similar to Stevenson, but
he complains that this Court has not "established a bright line
rule to determine whether a person is operating a motor vehicle
as a matter of law." He is undoubtedly correct that we have not
established a bright-line rule, so we will revisit the proper
considerations in determining whether a person is operating a
motor vehicle. In our consideration of the matter, we will turn
for assistance to Code § 46.2-100 and to the dissenting opinion
in Stevenson. We will also refer to our decision in Williams.
Code § 46.2-100 provides that " '[o]perator' or 'driver'
means every person who either (i) drives or is in actual
physical control of a motor vehicle on a highway or (ii) is
exercising control over or steering a vehicle being towed by a
motor vehicle." (Emphasis added.)
The dissenting opinion in Stevenson states in part as
follows:
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
6 drunk is sitting behind the steering wheel of a motor vehicle alone, with the key already in the ignition. From a mechanical standpoint, the vehicle is capable of being immediately placed in motion to become a menace to the public, and to its drunken operator.
243 Va. at 439-40, 416 S.E.2d at 438-39. (Compton, J.,
dissenting) (citations and internal quotation marks omitted)
(emphasis added).
We take this opportunity to state that the statutory
definition of "operator" is controlling and that any individual
who is in actual physical control of a vehicle is an "operator."
We hold, therefore, that the dissenting opinion in Stevenson was
correct, and in discerning whether an intoxicated person seated
behind the steering wheel of a motor vehicle on a public roadway
with the key inserted into the ignition switch of the vehicle is
in actual physical control of the vehicle, the position of the
key in the ignition switch is not determinative.
In Williams, we stated that operating a motor vehicle
included "manipulating the mechanical or electrical equipment of
the vehicle . . . which alone, or in sequence, will activate the
motive power of the vehicle." 216 at 300, 217 S.E.2d at 896.
Although operating a motor vehicle may be proven by evidence of
manipulation of the mechanical or electrical equipment, it need
not be proven in that manner. All that is necessary is evidence
that the person is in actual physical control of the vehicle
within the meaning of Code § 46.2-100.
7 From the foregoing, we establish the rule that when an
intoxicated person is seated behind the steering wheel of a
motor vehicle on a public highway and the key is in the ignition
switch, he is in actual physical control of the vehicle and,
therefore, is guilty of operating the vehicle while under the
influence of alcohol within the meaning of Code § 18.2-266.
The evidence in this case showed beyond a reasonable doubt
that Enriquez was drunk, that he was seated behind the steering
wheel of his vehicle on a public street, and that the key was in
the ignition switch of the car. Accordingly, we hold that the
evidence was sufficient to support a finding that Enriquez was
in actual physical control of the vehicle, and to support his
conviction for operating a motor vehicle while under the
influence of alcohol in violation of Code § 18.2-266.
CONCLUSION
For the reasons assigned, we will affirm the judgment of
the Court of Appeals of Virginia.
Affirmed.