Stevenson v. City of Falls Church , 243 Va. 434 ( 1992 )

JUSTICE COMPTON, with whom CHIEF JUSTICE CARRICO and JUSTICE HASSELL

join, dissenting.

In my opinion, when a drunk is sitting in the driver’s seat of a parked, operable motor vehicle, and he is alone and has inserted the key in the ignition switch, he is in “actual physical control” of the vehicle, within the settled meaning of that statutory term as articulated in every case previously decided by this Court.

The Court has rendered opinions in five prior cases dealing with this subject in the last 28 years: Gallagher v. Commonwealth, 205 Va. 666, 139 S.E.2d 37 (1964) (drunk sitting at steering wheel of car stuck in ditch with motor running); Nicolls v. Commonwealth, 212 Va. 257, 184 S.E.2d 9 (1971) (drunk “slumped” over steering wheel of inoperable vehicle with motor running); Williams v. Petersburg & Commonwealth, 216 Va. 297, 217 S.E.2d 893 (1975) (drunk “slumped” over steering wheel of vehicle stopped in parking lot with motor running); Lyons v. Petersburg, 221 Va. 10, 266 S.E.2d 880 (1980) (drunk found behind steering wheel of wrecked vehicle which had collided with another); and Overbee v. Commonwealth, 227 Va. 238, 315 S.E.2d 242 (1984) (conviction reversed when defendant found standing in front of vehicle with engine not running and key not in ignition). In each of those cases, the Court employed the statutory definition (not a dictionary definition) of the terms “operator” and “driver,” found in former Code § 46.1-1(17) (1986 Repl. Vol.), now Code § 46.2-100. The Court was construing the word “operate” as used in the drunk-driving statute, Code § 18.2-266, which makes it unlawful for a person to “drive or operate” a motor vehicle while under the influence of alcohol.

As pertinent, the statutory words “operator” and “driver” mean “every person who . . . drives or is in actual physical control of a motor vehicle on a highway.” Code § 46.2-100. The Court has followed the view that the term “operate” is not limited to the movement of the vehicle but includes a defendant who is “in actual physical control” of the vehicle. Nicolls, 212 Va. at 259, 184 S.E.2d at 11.

The reason for this liberal interpretation of the words “operate,” “operator,” and “operating” is obvious. A motor vehicle is recognized in the law as a dangerous instrumentality when in the control of a sober person; in the control of a drunk, the dangerous instrumentality becomes lethal. Therefore, until now, the Court has interpreted the drunk-driving statute in a way that kept drunks from behind the steering wheels of motor vehicles, even when the drunk needed to “sleep it off.” See Williams, 216 Va. at 299, 217 S.E.2d at 895.

Ordinary experience tells us that one in a drunken stupor in the driver’s seat of a vehicle is likely to arouse abruptly, engage the motive power of the vehicle, and roar away imperiling the lives of innocent citizens. This sequence of events easily can occur where, as here, a drunk is sitting behind the steering wheel of a motor vehicle alone, with the key already in the ignition. From a mechanical standpoint, the vehicle is “capable of being immediately placed in motion to become a menace to the public, and to its drunken operator.” Id. at 301, 217 S.E.2d at 896.

The majority labors to distinguish this case from Williams by saying that Stevenson’s ignition key may have been in the “off” position. Ergo, the majority says, the defendant was not in actual physical control of the vehicle, and he did not “operate” the car.

That is a distinction which makes no difference whatever. A motor vehicle can be started as readily with an ignition key in the “off” position as it can when the key is in the “on” position.

Consequently, I would affirm the conviction, and the judgment of the Court of Appeals.