Ellen Marie Rix, Appellant, against Commonwealth of Virginia, Appellee.
Record No. 101737
In the Supreme Court of Virginia
June 9, 2011
Court of Appeals No. 1424-09-1
Upon an appeal from a judgment rendered by the Court оf Appeals of Virginia.
Upon consideration of the record, briefs, and argument of counsel, the Court is of оpinion that there is no reversible error in the judgment of the Court of Appeals.
On June 21, 2008, Virginia Beach Police Officer B. K. Womble observed a vehicle “weaving” on Interstate 264 in the City of Virginia Beach. He stopped the vehicle and approached it. While doing so, he saw the driver exchange seats with the front-seat passenger. The driver, Veselina Stoilova, who had been behind the steering wheel while the car was in motion, was in the passеnger seat when the officer reached the car. The former passenger was Ellen Marie Rix (the defendant) whom the officer found sitting in the driver’s seat behind the steering wheel. The keys were in the ignition and the engine was running.
The officer had the defendant step out of the car. She had a strong odor of alcohol about her persоn, and exhibited slightly
The defendant was convicted in general district court and appealed the convictions to the Circuit Court of the City of Virginia Beach. At a bench trial, Officer Womble admitted that he had not seen the defendant put the car in motion. Veselina Stoilova testified that she had driven the car but had asked the defendant to exchange seats with her because she was driving without a permit. The defendant testified that she exchanged seats with the driver because she thought that the drivеr would face deportation if arrested. The defendant was convicted of both offenses. She apрealed to the Court of Appeals. A panel of that Court, by published opinion, Rix v. Commonwealth, 56 Va. App. 749, 756, 697 S.E.2d 33, 36 (2010), affirmed the convictions. We awarded her an appeal.
Because the facts аre undisputed, this appeal presents only the
We recently reviewed our decisions considering variations on this theme in Nelson v. Commonwealth, 281 Va. 212, 707 S.E.2d 815 (2011). In that case, Nelson was found slumped over the steering wheel of a vehicle parked in a residential neighborhood, asleep or unconscious. The car’s radio was playing but the engine was not running and the ignition key was turned to the position that allowed the radio to operate while the engine was not running. The gearshift was in the “park” position. Id. at 214, 707 S.E.2d at 816. We affirmed Nelson’s conviction becausе, by turning the ignition key to the “on” or “accessory” position that would allow the radio to operate, he hаd manipulated the electrical equipment of the vehicle. Applying the test explained in Stevenson v. City of Falls Church, 243 Va. 434, 438, 416 S.E.2d 435, 438 (1992), we noted thаt “operating” a motor vehicle includes “manipulating the mechanical or electrical equipmеnt of the vehicle without actually putting the car in motion. It means engaging the machinery of the vehicle which alone, or in sequence, will activate the motive power of the vehicle.” Nelson, 281 Va. at 216, 707 S.E.2d at 817.*
Accordingly, we held that Nelsоn’s action was a step which, taken in sequence, would have led to the activation of the motive pоwer of the vehicle. Id. at 219, 707 S.E.2d at 818.
In the present case, we do not reach the question whether the defendant took some action which, in sequence, would have activated the motive power of the vehicle. Its motivе power was already activated. While the officer watched, she took actual physical control of a fully operational motor vehicle on a highway, with its ignition key in the “on” position and its engine running. She thus met thе statutory definition of an “operator” of a motor vehicle. See
This order shall be published in the Virginia Reports and shall
A Copy,
Teste:
Patricia L. Harrington, Clerk