Nelson v. Com., 707 S.E.2d 815

Nelson was found in a Jeep Grand Cherokee, parked in a residential cul-de-sac, appearing asleep or unconscious, with the radio on and engine not running.
The ignition key was in the ignition in the 'on or accessory' position, enabling the radio but not necessarily the engine.
There was odor of alcohol, a beverage container in the console, and signs Nelson had been in the vehicle for a while.
Nelson was unable to stand, failed most field sobriety tests, and blood alcohol measured at .40.
Nelson was charged with driving while intoxicated, fourth offense in ten years; the jury convicted and the circuit court imposed sentence.
Nelson contends the evidence did not prove he was 'operating' the vehicle under Code § 18.2-266.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Nelson operated the vehicle under Code § 18.2-266	Nelson: key in ignition off/neutral—no operation; radio activation not motor power	Commonwealth: turning key to on/accessory counts as operating in sequence	Yes; Nelson operated the vehicle

Gallagher v. Commonwealth, 205 Va. 666 (Va. 1964) (established early operating standard when motor running)
Nicolls v. Commonwealth, 212 Va. 257 (Va. 1971) (vehicle with motor running and gear engaged supports operating)
Williams v. City of Petersburg, 216 Va. 297 (Va. 1975) (operating includes starting engine or manipulating equipment without motion)
Lyons v. City of Petersburg, 221 Va. 10 (Va. 1980) (operating under similar factual constructs)
Overbee v. Commonwealth, 227 Va. 238 (Va. 1984) (reversed where key not in ignition and engine not running)
Stevenson v. City of Falls Church, 243 Va. 434 (Va. 1992) (key in ignition off; not operating where no equipment engaged)