Virginia classifies cases such as reckless driving or driving under the influence, also known as driving while intoxicated as Class 1 misdemeanors. By definition, in order to convict an individual of DUI or DWI in Virginia requires that the individual be “driving”. Recently, the Supreme Court of Virginia had the opportunity to define whether this means that the police officer must literally observe the person driving the vehicle. The case was Rix v. Commonwealth.
In that case, a police officer 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, who had been behind the steering wheel while the car was in motion, was in the passenger seat when the officer reached the car. The former passenger was 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 person, and exhibited slightly slurred speech. Her eyes were bloodshot and glassy. She swayed when standing and walking. She refused to take a field sobriety test and told the officer that he could not arrest her because she had not been driving. The officer placed her under arrest and read her the implied consent law. She refused to take a breathalyzer test. Taken before a magistrate, the defendant was charged with operating a motor vehicle while under the influence of alcohol, second offense within five years, in violation of Code §§ 18.2-266 and 270 and with refusal to take a blood or breath test, second offense within ten years, in violation of Code § 18.2-268.3.
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 driver would face deportation if arrested. The defendant was convicted of both offenses. She appealed to the Court of Appeals.
The issue on appeal was whether she was the operator of a motor vehicle within the meaning of the relevant statutes. Code § 18.2-266 makes it unlawful to “drive or operate” a motor vehicle while under the influence of alcohol to a degree that impairs one’s ability to drive safely. Code § 46.2-100 includes within the definition of an “operator [of a motor vehicle]” any person who is in actual physical control of a motor vehicle on a highway.
The Court observer that while the officer watched, defendant 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 the statutory definition of an “operator” of a motor vehicle. See Code § 46.2-100. Accordingly, the Court affirmed the conviction.