COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Benton and Bray 

Argued at Richmond, Virginia 

LINDA EUGENE HALL 

 OPINION 

v. Record No. 1782-96-2 BY JUDGE JOSEPH E. BAKER 

 AUGUST 5, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL 

James A. Luke, Judge 

 James M. Goff, II, for appellant. 

 Margaret Ann B. Walker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Linda Eugene Hall (appellant) appeals from her bench trial 

conviction by the Circuit Court of the City of Hopewell for 

violation of Code § 46.2-8521 (reckless driving). The sole issue 

presented by this appeal is whether the evidence is sufficient to 

prove beyond a reasonable doubt that appellant drove a vehicle 

recklessly on a highway in violation of Code § 46.2-852. We find 

that the evidence is insufficient and reverse. 

 Code § 46.2-852 provides: 

 Reckless driving; general rule. -- 

Irrespective of the maximum speeds permitted 

by law, any person who drives a vehicle on 

any highway recklessly or at a speed or in a 

manner so as to endanger the life, limb, or 

property of any person shall be guilty of 

reckless driving. 

 

 1Although the record contains two references to Code 

§ 46.2-853, the parties agree that appellant was convicted of 

violating Code § 46.2-852. Thus, our inquiry here is focused upon 

the application and interpretation of Code § 46.2-852. 
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 Upon familiar principles, we view the evidence in the light 

most favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. Martin v. Commonwealth, 4 

Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). On August 28, 

1995, Hopewell Police Officer Daniel Pisarck (Pisarck) was 

informed of "a possible broken down vehicle" near the 

intersection of 6th Street and Route 10 and proceeded to 

determine the reason for the stopped vehicle. Pisarck testified 

that at approximately 11:40 p.m., he arrived at the designated 

location and found appellant's car stopped in the lane of travel 

on North 6th Avenue. He said that the operator was "passed out"2

behind the wheel and that appellant's car was situated in a 

"heavily travelled area," particularly at that time of night. 

Pisarck found that the car's ignition switch and headlights were 

on, and its battery and alternator indicator lights were 

illuminated on the instrument panel. Pisarck opined that 

appellant's car was a traffic hazard which posed a threat to 

appellant's safety and to the safety of other motorists. 

However, Pisarck never saw the car in motion prior to or during 

his investigation. Pisarck confirmed that he had not observed 

appellant driving the vehicle. 

 Pisarck tapped on the driver's side window with his 

flashlight and shined the light in appellant's face attempting to 

 

 2Pisarck did not confirm whether appellant had "passed out" 

from an illness or had merely fallen asleep and appeared to 

surmise that it was one or the other. 
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wake her. When she awoke, appellant told him she was "headed 

home to Chesterfield." Pisarck noted that the direction of her 

vehicle was such that she was really "coming from Chesterfield." 

 Pisarck noticed a strong odor of alcohol escaping from the 

vehicle and discovered two open alcoholic beverage containers 

therein. Appellant admitted she had been drinking. Her speech 

was slurred and she was unsteady on her feet. Pisarck arrested 

appellant for driving while intoxicated. Appellant's certificate 

of breath analysis showed an alcohol content of ".17 grams per 

210 liters of breath." 

 For reasons not disclosed in the record, the prosecutor 

elected not to proceed on the charge for which appellant was 

arrested and amended the charge to reckless driving. To support 

a conviction for reckless driving in violation of Code 

§ 46.2-852, the Commonwealth must prove beyond a reasonable doubt 

that the accused drove the vehicle in a reckless manner "so as to 

endanger the life, limb, or property" of another. 

 The Commonwealth relies upon Kennedy v. Commonwealth, 1 Va. 

App. 469, 339 S.E.2d 905 (1986), to support appellant's 

conviction. Kennedy and his family had been on the road for 

eight hours when Kennedy ran his van off of the road into a 

wooded median strip. Id. at 470-71, 339 S.E.2d at 906. This 

Court affirmed Kennedy's conviction even though no eyewitness 

testimony proved Kennedy drove in a reckless manner. The Court 

in Kennedy stated that the circumstances of the accident were 
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such as to give rise to an inference that the car had been driven 

in a reckless manner in violation of the Code. Id. at 472, 339 

S.E.2d at 907. 

 The circumstances in which Pisarck found appellant's car 

were such as to give rise to an inference that appellant drove 

her car to the location where Pisarck found her. In fact, we 

have held in similar circumstances that a defendant could be 

convicted of driving or operating a motor vehicle while 

intoxicated. See Propst v. Commonwealth, 24 Va. App. 791, 485 

S.E.2d 657 (1997). However, the circumstances in appellant's 

case do not give rise to an inference that she drove her car in a 

reckless manner.3 See City of Baton Rouge v. Copley, 372 So.2d 

1215 (1979); Jenson v. Fletcher, 101 N.Y.S.2d 75 (1950). 

 In Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628, 

630 (1970), the Court said: 

 The word "recklessly" as used in the statute 

imparts a disregard by the driver of a motor 

vehicle for the consequences of his act and 

an indifference to the safety of life, limb 

or property . . . . 

 The essence of the offense of reckless 

driving lies not in the act of operating a 

vehicle, but in the manner and circumstances 

of its operation. 

 

 3"[W]hile evidence of intoxication is a factor that might bear 

upon proof of dangerous or reckless driving in a given case, it 

does not, of itself, prove reckless driving." Bishop v. 

Commonwealth, 20 Va. App. 206, 210, 455 S.E.2d 765, 767 (1995). 

"'One may be both drunk and reckless. He may be reckless though 

not drunk; he may even be a total abstainer, and he may be under 

the influence of intoxicants and yet drive carefully.'" Id.

(quoting Spickard v. City of Lynchburg, 174 Va. 502, 504-505, 6 

S.E.2d 610, 611 (1940)). 
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 We hold that under the facts shown by this record, the 

Commonwealth has failed to prove beyond a reasonable doubt that 

appellant was guilty of reckless driving in violation of Code 

§ 46.2-852. 

 Accordingly, the judgment of the trial court is reversed and 

the case is dismissed. 

 Reversed and dismissed.