748 S.E.2d 641
Va. Ct. App.2013Background
- Appellant was found sleeping in the driver’s seat of his Mercedes parked in a private driveway with the radio on; the key was in the ignition in the auxiliary position and alcohol odor was detected when awakened by an officer.
- Officer received a noise complaint around 3:30 a.m. and observed appellant in the car after knocking on the window.
- Appellant provided statements about drinking at a pub and at a Corner store before returning home; he later performed field sobriety tests, failing several but passing one test.
- Trial evidence included lay witness testimony and appellant’s housemate corroborating presence of the car and noise; the defense sought jury instructions defining “operation” and related terms.
- Before deliberations the trial court refused four proffered jury instructions (I–L) and instead used the Commonwealth’s definition of “operation” along with a standard elements instruction.
- The court ultimately denied motions to strike evidence and convicted appellant of operating a motor vehicle while under the influence of alcohol.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court properly refused proffered jury instructions defining operation | Sarafin argues instructions I–L precisely defined operation | Commonwealth argues the model instruction and case law suffice | No reversible error; court properly refused incorrect instructions |
| Whether operating under the influence can be proven when the vehicle is on private property | Sarafin contends private driveway negates operation under 18.2-266 | Commonwealth contends statute does not require public highway | Conviction upheld; statute does not require public highway |
| Whether evidence showed appellant was in actual physical control/sequenced action to activate vehicle | Sarafin asserts lack of sequence to activate motive power | Commonwealth relies on Enriquez to show control occurs even if not moving | Sufficient evidence that appellant was in actual physical control and action in sequence supported conviction |
Key Cases Cited
- Enriquez v. Commonwealth, 283 Va. 511 (Va. 2012) (operator defined by actual physical control; sequence considerations noted)
- Valentine v. Brunswick Cnty., 202 Va. 696 (Va. 1961) (place of offense not required to be a public highway)
- Gallagher v. Commonwealth, 205 Va. 666 (Va. 1964) (defined operator; 'operate' includes more than moving vehicle)
- Ngomondjami v. Commonwealth, 54 Va. App. 310 (Va. 2009) (operator includes starting engine or manipulating equipment; not required to intend motion)
- Nelson v. Commonwealth, 281 Va. 212 (Va. 2011) (placing key in ignition in sequence can establish operator)
- Williams v. City of Petersburg, 216 Va. 297 (Va. 1975) (operating includes starting engine or manipulating equipment without motion)