COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Clements and Senior Judge Coleman 

Argued at Richmond, Virginia 

DEBBIE DENISE FLOYD 

 MEMORANDUM OPINION* BY 

v. Record No. 0568-01-2 JUDGE JEAN HARRISON CLEMENTS 

 JULY 30, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Cleo E. Powell, Judge 

 Randy B. Rowlett (Gordon, Dodson & Gordon, on 

brief), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Randolph A. Beales, Attorney 

General, on brief), for appellee. 

 Debbie Denise Floyd was convicted in a bench trial of 

operating a motor vehicle under the influence of alcohol, in 

violation of Code § 18.2-266, her third such offense within ten 

years. On appeal, she contends the evidence was insufficient, 

as a matter of law, to sustain the conviction because it failed 

to prove she was "operating" a motor vehicle. We disagree and 

affirm the conviction. 

 As the parties are fully conversant with the record in this 

case and because this memorandum opinion carries no precedential 

value, this opinion recites only those facts and incidents of the 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
proceedings as necessary to the parties' understanding of the 

disposition of this appeal. 

I. BACKGROUND 

 The facts before us are not in dispute. On the morning of 

April 30, 2000, Trooper Shawn T. Rivard of the Virginia State 

Police was dispatched to a disabled vehicle on Chippenham 

Parkway in Chesterfield County. When he arrived at the scene, 

Trooper Rivard observed a car broken down in the far right 

travel lane of the road with its hood up. Floyd was standing in 

front of the car looking under the hood. The car was not 

running. There was no evidence regarding how the car had 

arrived at that location or how long it had been there. 

 When asked by Rivard if the vehicle would start, Floyd said 

it would not. Rivard then "asked her to try to start it so 

[they] could move it" off the roadway. Floyd got in the 

driver's seat and "attempted to start" the car, but, when she 

"operat[ed] the ignition," the car's engine only clicked, 

without starting. Rivard then used his police vehicle to push 

Floyd's car onto the road's shoulder. 

 Once Floyd's car was off the road, Rivard called Floyd back 

to his vehicle to arrange for the dispatch of a wrecker. As 

they sat in his vehicle, Rivard smelled a strong odor of alcohol 

emanating from Floyd. In response to Rivard's inquiry, Floyd 

told the officer she had had three beers that morning. 

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 After administering field sobriety tests to Floyd, Rivard 

placed her under arrest for driving under the influence. A 

subsequent breath analysis test showed Floyd had a blood alcohol 

concentration of 0.18 grams per 210 liters of breath. 

 Finding that, in turning the key in the ignition in an 

attempt to start her disabled car, Floyd was operating a motor 

vehicle, the trial court convicted Floyd of driving under the 

influence of alcohol in violation of Code § 18.2-266. Because 

it was Floyd's third such offense within ten years, the offense 

was a felony under Code § 18.2-270. The trial court sentenced 

her to five years in prison, suspending all but ten days of the 

sentence. This appeal followed. 

II. ANALYSIS 

 When the sufficiency of the evidence is challenged on 

appeal, we determine whether the evidence, viewed in the light 

most favorable to the Commonwealth, the party prevailing below, 

and the reasonable inferences fairly deducible from that 

evidence support each and every element of the charged offense. 

See Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740 

(1997); Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 

668 (1991). In doing so, we must "regard as true all the 

credible evidence favorable to the Commonwealth and all fair 

inferences that may be drawn therefrom." Watkins v. 

Commonwealth, 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998). 

We are further mindful that the "credibility of a witness, the 

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weight accorded the testimony, and the inferences to be drawn from 

proven facts are matters solely for the fact finder's 

determination." Crawley v. Commonwealth, 29 Va. App. 372, 375, 

512 S.E.2d 169, 170 (1999). We will not reverse the judgment of 

the trial court unless it is plainly wrong or without evidence 

to support it. See Martin v. Commonwealth, 4 Va. App. 438, 443, 

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

 Code § 18.2-266 provides, in pertinent part, that "[i]t 

shall be unlawful for any person to . . . operate any motor 

vehicle . . . while such person has a blood alcohol 

concentration of . . . 0.08 grams or more per 210 liters of 

breath." Code § 46.2-100 defines "operator," in pertinent part, 

as one who "drives or is in actual physical control of a motor 

vehicle upon a highway." 

 On appeal, Floyd challenges the sufficiency of the evidence 

to prove she was "operating" a motor vehicle within the 

proscription of the drunk driving statute. The Commonwealth's 

evidence, she argues, failed to show she was engaging the car's 

machinery or otherwise operating her inoperable car. The fact 

that Trooper Rivard heard clicking sounds coming from the car's 

engine was insufficient, by itself, she claims, to establish her 

conduct was within the purview of the statute. Furthermore, she 

argues, even if the evidence were sufficient to establish she was 

engaging the car's machinery, "because she was placed behind the 

wheel of the automobile on directive of [Trooper Rivard]," any 

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operation of the car occurred while the car was under Rivard's 

control, not hers. Accordingly, she reasons, the trial court 

erred in finding that she was operating the car. We disagree. 

 Within the meaning of Code § 18.2-266, "operating" a vehicle 

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). Furthermore, "a vehicle need not be 

functional in the sense of being able to move from place to place 

in order to be 'operated.'" Keesee v. Commonwealth, 32 Va. App. 

263, 268, 527 S.E.2d 473, 476 (2000). 

 Here, viewed in the light most favorable to the 

Commonwealth, the evidence and the reasonable inferences fairly 

deducible therefrom establish that, following Trooper Rivard's 

arrival at the scene, Floyd got into her car, which had broken 

down in a travel lane of the road, and, while sitting in the 

driver's seat, turned the key in the car's ignition in an 

attempt to start the car. In response, the car's engine made a 

clicking sound but did not start. 

 In operating the ignition switch of her car, Floyd plainly 

manipulated the mechanical or electrical equipment of her car and 

engaged the machinery of the car which alone, or in sequence, 

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would activate the car's motive power. The fact that the car did 

not actually start is not dispositive. See, e.g., id. (holding 

that, even though the vehicle's motor was not running, evidence 

that the accused was alone in the vehicle, the key was in the 

ignition, the vehicle was in gear, and one of the vehicle's 

taillights was illuminated was sufficient to find that the accused 

was "operating" the vehicle within the proscription of Code 

§ 18.2-266). Hence, we conclude that Floyd's conduct constituted 

"operating" a motor vehicle under Code § 18.2-266. 

 As for Floyd's argument that she was not in actual physical 

control of her car because she was directed to start the car by 

Trooper Rivard, we find that such a contention is without merit 

because its premise is erroneous. Rivard did not direct, 

instruct, order, or otherwise require Floyd to start her car. 

According to Rivard's uncontradicted testimony, he merely "asked 

her to try to start it so [they] could move it" off the roadway, 

unaware at the time that Floyd was intoxicated. Knowing she was 

intoxicated, Floyd, who was under no compulsion to accede to 

Rivard's request, could and should have declined the trooper's 

request. 

 We hold, therefore, that the evidence presented was 

sufficient, as a matter of law, to prove beyond a reasonable doubt 

that Floyd was "operating" a motor vehicle within the meaning of 

Code § 18.2-266. Accordingly, we affirm Floyd's conviction. 

 Affirmed.

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