Sarafin v. Commonwealth, 764 S.E.2d 71

On Jan. 20, 2011, Officer McBrearty found Justin Sarafin asleep in the driver’s seat of his car parked in his private driveway with the key in the ignition in accessory position and the radio playing.
Officer detected alcohol, administered field sobriety tests (Sarafin failed 3 of 5) and a preliminary breath test; Sarafin was arrested under Va. Code § 18.2-266 (DUI).
At trial the circuit court denied several of Sarafin’s proffered jury instructions, gave the Commonwealth’s instruction defining “operate,” and the jury convicted; the court imposed a fine and a 12‑month license suspension.
The Court of Appeals affirmed, holding Sarafin had actual physical control and that public‑ownership of the property is not an element of § 18.2-266.
The Supreme Court of Virginia granted review to decide (1) whether Sarafin’s conduct constituted “operate”/“operation” under § 18.2-266, (2) whether operation must occur “on a highway,” and (3) whether the trial court erred in refusing Sarafin’s jury instructions.

Issue	Sarafin’s Argument	Commonwealth’s Argument	Held
Whether evidence shows Sarafin “operated” the vehicle (sufficiency/actual physical control)	He was merely asleep in his driveway, never intended to leave, and did not activate motive power.	He was in actual physical control (driver’s seat, key in ignition/accessory, could readily activate vehicle).	Guilty: actual physical control (key in ignition/seat position) sufficed under prior precedent.
Whether § 18.2-266 requires operation to be "on a highway"	The statute should incorporate the Motor Vehicle Code definition of “operator” (which refers to being on a highway), so private‑property operation cannot sustain a DUI conviction.	§ 18.2-266 contains no "on a highway" phrase for motor vehicles (only for mopeds); Legislature knows how to include such a limit but did not—statute applies off public highways.	No highway requirement: Court reads plain statutory text to omit an "on a highway" element for motor vehicles; Enriquez’s highway language was dicta.
Whether trial court erred refusing Sarafin’s proffered instructions (I, J, K, L)	Instructions were needed to require an "on a highway" element and to define operation narrowly.	The court’s Instruction 6 correctly stated the law; proffered instructions were incorrect or irrelevant given the statutory construction.	No error: Instruction 6 properly stated law; proffered instructions misstated law or were unnecessary.

Enriquez v. Commonwealth, 283 Va. 511 (2012) (holds person in actual physical control with key in ignition is an operator for § 18.2-266)
Nelson v. Commonwealth, 281 Va. 212 (2011) (turning ignition to accessory/on position is a step toward activating motive power; actual‑control analysis)
Nicolls v. Commonwealth, 212 Va. 257 (1971) (early application of actual physical control concept)
Gallagher v. Commonwealth, 205 Va. 666 (1964) (historical interpretation of “operate” in DUI context)
Williams v. City of Petersburg, 216 Va. 297 (1975) (operation may be established by manipulating mechanical/electrical equipment)
Valentine v. County of Brunswick, 202 Va. 696 (1961) (upholding conviction under local ordinance for impaired operation on private property)