COURT OF APPEALS OF VIRGINIA

Present: Judges Kelsey, McClanahan and Haley Argued at Chesapeake, Virginia

ELLEN MARIE RIX OPINION BY v. Record No. 1424-09-1 JUDGE ELIZABETH A. McCLANAHAN AUGUST 17, 2010 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH William R. O’ Brien, Judge Michael J. Woods (Michael J. W oods, P.C., on brief), for appellant. John W. Blanton, Assistant Atto rney General (William C. Mims, Attorney General, on brief), for appellee.

Ellen Marie Rix appeals from her convictions in a bench trial for driving or operating a

motor vehicle while under the influe nce of alcohol and refusal to ta ke a blood or breath test, both second offenses. Rix argues the evidence was insufficient to su pport her convictions because she did not drive or operate a motor vehicle within th e meaning of the DUI stat ute. Disagreeing with her arguments, we affirm the ju dgment of the trial court.

I. BACKGROUND Virginia Beach Police Officer B.K. Womble observed a vehicle weav ing on the highway. He stopped the vehicle and, as he approached, he observed the dr iver, Veselina Stoilova, switch seats with Rix, who had been sitting in the fr ont passenge r’s seat. 1 When Officer Womble reached the vehicle, Rix was sitting in the driver’s seat, the keys were in the i gnition, and the engine was

1 At trial, Stoilova testifie d she asked Rix to switch seats with her because she did not have a driver’s license. Rix testified she switc hed seats with Stoilova because she believed Stoilova would be de ported if arrested.- 2 - running. Officer Womble asked Rix to step out of the vehicle and, when she did so, he noted a strong odor of alcohol about he r. Womble observed that Rix had slightly slurred speech, and bloodshot and glassy eyes. In additi on, her ability to stan d and walk was impair ed. Rix refused to perform any field sobriety tests telling the officer she had not been driving the vehicle. After Officer Womble arrested Rix for driving or operatin g a vehicle under the influence of alcohol, she refused a breath test stating, agai n, that she was not driving the ve hicle. Rix was convicted, in a bench trial, of driving or operating a vehicle in vi olation of Code § 18.2-26 6, second offe nse within five years, and refusal to take a breath or blood test in violat ion of Code § 18 .2-268.3, second offense within five years.

II. ANALYSIS

Rix contends the evidence was insufficient to prove she drove or operated a vehicle within the meaning of Code § 18.2-266 because she did not engage any mechanical component of the

vehicle. Code § 18.2-266 states, in part, that “[i]t sha ll be unlawful for any pers on to drive or operate any motor vehicle . . . while such person is under the influe nce of alcohol.” As the Supreme Court

has noted: “It seems clea r that driving an automo bile means putting in mo tion; but it seems equally

clear that unless it was intended th at [§ 18.2-266] s hould cover an activity in addition to driving, the word ‘operate’ is useless bagg age and serves no purpose.” Gallagher v. Commonwealth , 205 Va. 666, 668-69, 139 S.E.2d 37, 39 (1 964). Code § 46.2-100 defines “a n operator” as one who “drives or is in actual physical control of a motor vehicle on a highway.” For over forty years, the Virginia

courts have used this definition of “operator” in the Motor Vehicl e Code to determ ine guilt under

the DUI statute. 2

2 Although the definition of “operator” in Code § 46.2-100 is not explicitly referenced in the DUI statute, this Court has opined that it “ser ves as a valuable interpre tative guide to the DUI statute.” Dugger v. Commonwealth , 40 Va. App. 586, 592, 580 S.E.2d 477, 480 (2003). In- 3 - It is undisputed that Rix did not put the vehicle in motion so as to drive it. Thus, the question before us is whether she was in “physical control” of the vehicle so as to operate it. Although “an accused’s presence in or about a mo tor vehicle when arrested is insufficient, standing alone, to prove that the accused had ‘a ctual physical control’ of the motor vehicle,” physical control may be shown by the accuse d’s presence “coupled with some other contemporaneous circumstance.” Leake v. Commonwealth , 27 Va. App. 101, 107, 497 S.E.2d 522, 525 (1998). Such other circumstances include “‘starting the engine, or manipulating the mechanical or electrical equipment of the vehicl e without actually putting the car in motion . . . [or] engaging the machinery of the vehicle whic h alone, or in sequence, will activate the motive power of the vehicle.’” Id. (quoting Williams v. City of Petersburg , 216 Va. 297, 300, 217 S.E.2d 893, 896 (1975)). These examples are not exclusive as neither this Court nor the Supreme Court has established a ny bright line rules regarding th e requirements for establishing physical control of a vehicle. See Propst v. Commonwealth , 24 Va. App. 791, 794, 485 S.E.2d 657, 659 (1997). 3 Indeed, physical control has been s hown where defendants were found merely seated behind the steering wheel with the engine running. See, e.g., Nicolls v. Commonwealth , 212 Va. 257, 258, 184 S.E.2d 9, 10 (1971) (defendant “was ‘slumped’ over the steering wheel and his hands were ‘hanging down’”); Ngomondjami v. Commonwealth , 54 Va. App. 310,

addition, the Supreme Court “approved this defi nition for the purpose of determining whether one ‘operates’ a motor vehicle within the meani ng of [the DUI statute]” over forty years ago. Nicolls v. Commonwealth , 212 Va. 257, 259, 184 S.E.2d 9, 11 (1971) (citing Gallagher , 205 Va. at 668, 139 S.E.2d at 39). While other state legi slatures have enacted provisions within their DUI statutes that require some thing more than actual physical control of a vehicle for a conviction of DUI, see, e.g., Ga. Code § 40-6-391 (prohibiting a person from driving or being in actual physical control of “any moving vehicle” while under the influence) and Wis. Code § 346.63 (DUI statute defining “opera te” as “physical manipulation or activation” of controls of a vehicle “necessary to put it in motion”), the Virginia General Assembly has not done so.

3 Though the presence of one or more of th ese facts may tend to establish physical control, it is a non sequitur to conclude, as Rix does, that physical control cannot be shown absent the presence of one or more of these facts.- 4 - 314-15, 678 S.E.2d 281, 283 (2009) (defendant found “unc onscious, reclined in the driver’s seat of a car with its engine runni ng in a school parking lot”); compare Stevenson v. City of Falls

Church , 243 Va. 434, 416 S.E.2d 435 (1992) (defendant not operating vehi cle where he was found asleep behind steering wheel, engine wa s not running, and ignition key was in “off” position). Although we have not addressed a case in which a passenger switched seats with the driver during a traffic stop, a panel of this Court held in Dugger that a passenger seized physical control of a vehicle from the driver when the passenger placed his hands on the steering wheel of a moving vehicle and steered the vehicle off the roadway. As the Court explained, “the mischief addressed by the DUI st atute is the risk of harm posed by vehicles

under the control of intoxicated individuals. Whether that risk comes from an inebriated passenger (who forcibly takes control of the stee ring wheel) or from a drunk driver should not

matter.” Dugger , 40 Va. App. at 593, 580 S.E.2d at 481. The Court concluded the passenger’s “deliberate act” in taking the steer ing over from the driver “placed him in actual physical control of the vehicle.” Id. at 594, 580 S.E.2d at 481. In this case, Rix seized actual physical c ontrol of the vehicle wh en she switched seats with Stoilova in an effort to represent hersel f as the operator of the vehicle. By the time Officer Womble reached the vehicle, Rix was s eated behind the steering wheel, the keys were in the ignition, and the engine was running. Although there is no evidence Rix placed her hands on the steering wheel, put the vehicle in motion, or otherwise engaged the machinery of the vehicle, she purposely moved into the driver’s seat and permitted the engine to continue to- 5 - run. 4 In doing so, Rix “was keeping the car in restraint or in position to regulate its

movements.” State v. Ruona , 321 P.2d 615, 618 (Mont. 1958). Preventing a car from moving is as much control and dominion as actually putting the car in motion on the highway. Could one exercise any more regulation ove r a thing, while bodily present, than prevention of movement or curbing movement. As long as one were physically or bodily able to assert dominion, in the sense of movement, then he has as much control over an object as he would if he were actually driving the vehicle.

Id. We find these facts supplied the “other contemporaneous circ umstance[s]” to prove Rix was in “actual physical control” of the vehicle. Leake , 27 Va. App. at 107, 497 S.E.2d at 525. 5

4 When a person is seated behind the steeri ng wheel in the drive r’s seat, we see no difference between starting the vehicle’s engine and allowing an already engaged engine to continue to run for purposes of determining physical control. See, e.g., State v. Webb , 274 P.2d 338, 340 (Ariz. 1954) (Though when apprehended de fendant “may have been exercising no conscious volition with regard to the vehicle, still there is a leg itimate inference to be drawn that defendant had of his own choice placed himself be hind the wheel thereof, and had either started the motor or permitted it to run” and “therefore ha d the ‘actual physical cont rol’ of that vehicle, even though the manner in which such control was exercised resulted in the vehicle’s remaining motionless at the time of his apprehension.”); see also State v. Godfrey , 400 A.2d 1026, 1026 (Vt. 1979) (Despite “no evidence [defendant] wa s touching any mechanism by which the vehicle could be controlled,” “[b]eing behind the driver ’s seat with the motor running is, in our view, being in actual physical control.”); State v. Ruona , 321 P.2d 615, 618 (Mont. 1958) (“[O]ne could have ‘actual physical contro l’ while merely parking or st anding still so long as one was keeping the car in restraint or in position to regulate its movements.”); Diehl v. State , 975 S.W.2d 878, 879-80 (Ark. Ct. App. 1998) (Where “a ppellant was slumped over in the driver’s seat of the car with his legs under the steering wh eel, at which time the keys were in the ignition with the motor running,” the cour t had “no hesitancy in holding th at the appellant was in actual physical control of the vehicle.”); People v. Khan , 182 Misc. 2d 83, 84 (N.Y. App. Term 1997) (“An established line of authority in New York a nd elsewhere holds that fo r purposes of offenses for driving while intoxicated . . . operation of the vehicle is established on proof that the defendant was merely behind the wh eel with the engine running.”); City of Kansas City v. Troutner , 544 S.W.2d 295, 300 (Mo. Ct. App. 1976) (“[ A ] ctual physical control of a vehicle results, even though the machine merely stands mo tionless, so long as a person keeps the vehicle in restraint or in a position to regulate its movements.”); Rose v. State , 345 N.E.2d 257, 261 (Ind. Ct. App. 1976) (Evidence that defendant was in control of a running au tomobile stopped on a highway was sufficient to prove he operated the vehicle.).

5 We reject the contention by Rix that physical control requi res, in all cases, manipulation of the mechanical or electrical equipment of the vehicl e by defendant. Under application of such a rule, alt hough Rix would not have been in physical control of the vehicle as she was sitting behind the steering wheel w ith the engine running, she would have been in- 6 - Accordingly, it was reasonable for the trial cour t to conclude Rix was “operating” the vehicle within the meaning of Code § 18.2-266. 6 For these reasons, we affirm the judgment of the trial court.

Affirmed.

physical control of the vehicle had she simply placed her foot on the brake pedal, turned the ignition key off, or made any slight motion to disengage the machinery or stop the movement of the vehicle. Such an arbitrary distinction defies logic and frustrat es the goal of protecting the public from the danger of an intoxicated i ndividual seated behind the steering wheel of a running motor vehicle. Furthermore, “[c]arri ed to its logical conclusion, the defendant’s argument would free [her] from liability if, seated at the controls of a car careening down the highway, [s]he did not touch any of the controls.” Godfrey , 400 A.2d at 1027. It is true the Supreme Court has held an occ upant was in physical control “w hen he was seated behind the steering wheel and performed certain acts.” Stevenson , 243 Va. at 437, 416 S.E.2d at 437 (citing Williams , Nicolls , and Gallagher ). But none of those cases involved an occupant who intentionally placed himself behind the steeri ng wheel of a vehicle after the engine was already running. Extrapolating fr om that statement a bright line rule requiring an occupant to manipulate the equipment of the vehicle would l ead to the absurd result in this case that neither occupant of the vehicle was in physical c ontrol. The possibility of such a result aptly illustrates the wisdom of determining the issue of physical control by examining the facts and circumstances of each case rather than through application of a bright line rule.

6 Although Rix also argues the evidence was insufficient to support her conviction for refusal to take a blood or brea th test because she was not ope rating the vehicle within the meaning of the DUI statute, she did not brief this issue. See Rule 5A:20(e) (requiring the appellant’s brief to include, am ong other things, “principles of law, the argument, and the authorities relating to each questi on presented”). Nevertheless, our holding makes it unnecessary to address this issue.