COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Petty and Beales 

Argued at Chesapeake, Virginia 

MILLS EUGENE ROSE 

 MEMORANDUM OPINION*

 BY 

v. Record No. 2029-09-1 JUDGE WILLIAM G. PETTY 

FEBRUARY 15, 2011 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK 

Carl Edward Eason, Jr., Judge 

 (Edward R. House, on brief), for appellant. Appellant submitting 

on brief. 

 Robert H. Anderson, III, Senior Assistant Attorney General 

(Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee. 

Mills Eugene Rose was convicted of driving a motor vehicle while intoxicated, in 

violation of Code § 18.2-266. On appeal, Rose contends that he did not “operate” the motor 

vehicle, as required by the statute.1

 Rose argues that merely having his key in the auxiliary 

position with the radio running does not constitute operation of a vehicle within the meaning of 

the statute. We disagree. 

Because the parties are fully conversant with the record in this case and this 

memorandum opinion carries no precedential value, we recite only those facts and incidents of 

the proceedings as are necessary to the parties’ understanding of the disposition of this appeal. 

“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth, granting 

to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth, 26 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

1

 Rose does not argue that he was not intoxicated, so that issue is not before us. 
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Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 438, 

443, 358 S.E.2d 415, 418 (1987)). 

Viewed in the light most favorable to the Commonwealth, the facts are that Rose was 

sitting in the driver’s seat of his truck and lying across the passenger’s seat with his upper body 

when the police officer approached. The key was in the ignition, in the auxiliary position, and 

the radio was on. When the police officer awakened Rose, Rose went to the ignition switch, 

turned the key what appeared to be one notch to the left, and removed the keys from the ignition 

and dropped them on the floor. 

The question of whether Rose “operate[d]” a motor vehicle within the meaning of 

Code § 18.2-266 is a mixed question of law and fact. We are bound by the trial court’s factual 

determinations unless they are plainly wrong. Ziats v. Commonwealth, 42 Va. App. 133, 139, 

590 S.E.2d 117, 120 (2003). However, we review de novo the legal question of whether Rose’s 

actions constituted operation of a motor vehicle within the meaning of the code section. See

Gilbert v. Commonwealth, 47 Va. App. 266, 270, 623 S.E.2d 428, 430 (2005). 

Code § 18.2-266 makes it illegal “for any person to drive or operate any motor vehicle” 

while intoxicated. Although Code § 18.2-266 does not define “operate,” the Supreme Court has 

looked to the Motor Vehicle Code’s definition of “operator” to determine what “operate” means 

in § 18.2-266. Nicolls v. Commonwealth, 212 Va. 257, 259, 184 S.E.2d 9, 11 (1971); Gallagher 

v. Commonwealth, 205 Va. 666, 668, 139 S.E.2d 37, 39 (1964). The Motor Vehicle Code 

defines “operator” as “every person who . . . drives or is in actual physical control of a motor 

vehicle.” Code § 46.2-100. As the Supreme Court has noted, 

An “operator” is defined in pertinent part as “one that produces a 

physical effect or engages himself in the mechanical aspect of any 

process or activity: as . . . one that uses or operates a machine or 

device . . . sometimes used to distinguish the user of fixed devices 

from the driver of automotive devices.” 
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Stevenson v. City of Falls Church, 243 Va. 434, 437, 416 S.E.2d 435, 437 (1992) (quoting 

Webster’s Third New International Dictionary 1581 (1986)). For purposes of the drunken 

driving statute: 

“Operating” not only includes the process of moving the vehicle 

from one place to another, but also includes starting the engine, or 

manipulating the mechanical or electrical equipment 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. 

Williams v. City of Petersburg, 216 Va. 297, 300, 217 S.E.2d 893, 896 (1975) (emphasis added), 

quoted with approval in Stevenson, 243 Va. at 438, 416 S.E.2d at 438. 

Stevenson did not address the question of whether a person could be operating a vehicle 

when the key was positively shown to have been in the auxiliary position. However, after oral 

argument in this case, the Supreme Court decided that very question in Nelson v. 

Commonwealth, __ Va. __, __ S.E.2d __ (Jan. 13, 2011). On facts remarkably similar to those 

before us, the Supreme Court concluded that an intoxicated person who was hunched over in the 

driver’s seat of a vehicle with the key in the on or accessory position and the radio playing was 

an operator of the vehicle for purposes of Code § 18.2-266. Id. at __, __ S.E.2d at __. In 

affirming Nelson’s conviction, the Supreme Court noted: 

[T]he key was not in the “off” position but in an “on or accessory 

position.” Nelson turned on the radio by placing the key in the 

latter position, and his action constituted “manipulating the . . . 

electrical equipment of the vehicle.” . . . Manipulating the 

electrical equipment was one step between the “off” position and 

the point at which the motive power would be activated. While 

Nelson’s action in turning the key to the “on” or “accessory” 

position of the ignition did not alone activate the motive power, it 

was an action taken “in sequence” up to the point of activation, 

making him the operator of the vehicle within the meaning of Code 

§ 18.2-266. 

Id. at __, __ S.E.2d at __. 
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Here, Rose was found sitting in the driver’s seat of an automobile, with the key in the 

ignition switch, the switch turned to the auxiliary position,2 and the radio (part of the vehicle’s 

electrical equipment) running. Based on the Supreme Court’s holding in Nelson, we conclude 

that Rose was operating a motor vehicle within the meaning of Code § 18.2-266, and we thus 

affirm his conviction. 

Affirmed.

 2

 The term “auxiliary position” referred to here is the same key position referred to as the 

“accessory position” in Nelson.