Enriquez v. Commonwealth, 722 S.E.2d 252

Enriquez was convicted in a bench trial of driving or operating a motor vehicle while under the influence (Code § 18.2-266) and sentenced under the mandatory provisions for a second offense within five years.
The offense arose after a parking enforcement officer found a Toyota illegally parked in a bus stop at about 3:00 a.m. with Enriquez asleep in the driver’s seat.
Officer observations included an odor of alcohol and marijuana, Enriquez’s confusion about his location, and him waking only after police intervention.
Field sobriety testing followed, and Enriquez admitted drinking earlier that evening; he was placed under arrest after failing the tests.
Police observed the keys in the ignition; the radio could be heard from the vehicle, though the exact ignition position (on vs. accessory) was not recalled.
On appeal, Enriquez challenged the sufficiency of the evidence to prove operation of a motor vehicle under the influence as a matter of law.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence proves operation under § 18.2-266.	Enriquez argues the evidence fails to show actual physical control.	Commonwealth contends seated behind the wheel with key in ignition satisfies control.	Sustained; evidence supports actual physical control and operation.
Whether the ignition key position is determinative of 'operator'.	Stevenson dissent suggests key position could matter.	Statutory definition controls; position of key is not determinative.	Rule: being in actual physical control with key in ignition satisfies operator.
Whether the standard of review supports affirmance.	Evidentiary support shows intoxication and control.	De novo review with proper deference to trial court.	De novo review; evidence viewed in light favorable to Commonwealth; sufficient evidence found.

Gallagher v. Commonwealth, 205 Va. 666, 139 S.E.2d 37 (1964) (drunk in driver seat with vehicle moving or in gear)
Nicolls v. Commonwealth, 212 Va. 257, 184 S.E.2d 9 (1971) (drunk in car with motor running and heater on)
Williams v. City of Petersburg, 216 Va. 297, 217 S.E.2d 893 (1975) (drunk seated with vehicle on parking lot)
Lyons v. City of Petersburg, 221 Va. 10, 266 S.E.2d 880 (1980) (drunk in car, made no statement about accident)
Nelson v. Commonwealth, 281 Va. 212, 707 S.E.2d 815 (2011) (drunk hunched over in driver’s seat; ignition key present)
Rix v. Commonwealth, 282 Va. 1, 714 S.E.2d 561 (2011) (drunk seated with keys in ignition; engine running)
Overbee v. Commonwealth, 227 Va. 238, 315 S.E.2d 242 (1984) (drunk standing; hood up; engine not running)
Stevenson v. City of Falls Church, 243 Va. 434, 416 S.E.2d 435 (1992) (reversal for uncertainty of key position; dissent favored off position)