Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and 

Millette, JJ., and Carrico, S.J. 

DAVID L. NELSON 

 OPINION BY 

v. Record No. 100395 SENIOR JUSTICE HARRY L. CARRICO 

 January 13, 2011 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In this appeal involving a charge of driving while 

intoxicated, fourth offense within ten years (Code §§ 18.2-266; 

18.2-270(C)(2)),1 we decide whether the defendant, David L. 

Nelson, was “operating” a motor vehicle within the meaning of 

Code § 18.2-266. A jury in the Circuit Court of Fairfax County 

convicted Nelson as charged and fixed his punishment at 

imprisonment for one year and a fine of $1,000.00. The circuit 

court imposed the sentence fixed by the jury. In an unpublished 

opinion, the Court of Appeals of Virginia affirmed the judgment 

of the circuit court. Nelson v. Commonwealth, Record No. 2102-

08-4 (February 2, 2010). We will affirm the judgment of the 

Court of Appeals. 

BACKGROUND 

 On September 2, 2007, Master Police Officer Timothy Carl 

Benedict of the Fairfax County Police Department received a 

dispatch concerning a suspicious person who had been “sleeping 

 1

 Code § 18.2-266 prescribes the offense of driving under 

the influence and Code § 18.2-270 specifies the punishment 

therefor. 
or possibly passed out” in a vehicle for several hours. When he 

arrived on the scene, Officer Benedict observed Nelson “hunched 

over” in the driver’s seat of a Jeep Grand Cherokee parked on a 

cul-de-sac in a residential neighborhood. Nelson appeared to be 

asleep or unconscious with a cell phone up to his ear, but he 

was not speaking on the phone. Through the open window on the 

driver’s side, Officer Benedict could see that the lights of the 

“factory mounted radio” inside the vehicle were on and he could 

hear music but the engine was not running and the gearshift 

lever was in the “park” position. 

 Officer Benedict also observed that there was a key in the 

ignition that appeared to be in the “on or accessory position.” 

Officer Benedict testified that in this position “the car is not 

actually running” but it enables one to “run the radio and use 

things in the car” and in “[t]hat way you don’t actually have to 

have the engine running but you can still use the battery.” 

Officer Benedict said that to remove the key from the steering 

column he had to reach through the open window and pull the key 

backward “to the point where it would actually release.” This 

movement, Officer Benedict said, turned off the radio. 

 Officer Benedict also detected the odor of alcohol coming 

from the car, and he saw a 7-Eleven cup containing a clear 

liquid in the center console and an empty three-gallon wine jug 

“in the back seat.” Officer Benedict observed that Nelson had 

2
urinated on himself and had dried feces on his legs. Nelson’s 

hair and clothing were disheveled and it “looked like he had 

been there for a while." 

 Officer Benedict attempted to arouse Nelson by tapping on 

the car. Nelson responded slowly and appeared to be confused. 

His speech was slurred, his eyes were bloodshot, and he smelled 

of alcohol, yet he denied having had anything to drink. When he 

exited the car at Officer Benedict’s request, he was unable to 

stand without holding onto the car, and he failed most of the 

field sobriety tests he was given by Officer Benedict. When 

Nelson’s blood was tested, his alcohol level was found to be 

.40, or five times the legal limit. He told Officer Benedict he 

was renting a room in a nearby house but was not allowed to 

smoke there and had gone to his car to have a cigarette. 

 Nelson argues that the evidence was insufficient as a 

matter of law to convict him of driving while intoxicated 

because his conduct did not meet the legal standard for 

operating a motor vehicle. Nelson states that he did not 

operate his motor vehicle by placing the key in the ignition and 

activating the radio because neither action alone, or in 

sequence, will activate the motive power of the vehicle. 

STANDARD OF REVIEW 

 Whether Nelson operated his vehicle within the meaning of 

Code § 18.2-266 is a mixed question of law and fact which is 

3
reviewed de novo on appeal. See Carpitcher v. Commonwealth, 273 

Va. 335, 343, 641 S.E.2d 486, 490-91 (2007). “[U]pon appellate 

review, the evidence and all reasonable inferences flowing 

therefrom must be viewed in the light most favorable to the 

prevailing party in the trial court,” in this case, the 

Commonwealth. See Maxwell v. Commonwealth, 275 Va. 437, 442, 

657 S.E.2d 499, 502 (2008). “The judgment of the trial court is 

presumed to be correct and will be reversed only upon a showing 

that it is plainly wrong or without evidence to support it.” 

Id. (internal quotation marks omitted). 

ANALYSIS 

 We have previously reviewed several driving under the 

influence cases presenting the question whether the defendant 

was “operating” a vehicle. Convictions were upheld in the 

following cases: Gallagher v. Commonwealth, 205 Va. 666, 667, 

670, 139 S.E.2d 37, 37-38 (1964) (defendant found sitting at 

steering wheel of car, which was stuck in a ditch with the motor 

running, the car in gear, and a rear wheel spinning); Nicolls v. 

Commonwealth, 212 Va. 257, 258-59, 184 S.E.2d 9, 10-11 (1971) 

(defendant found slumped over steering wheel of car, which was 

parked on hard surface of highway with motor running, gears 

engaged, high beam lights on, and heater in operation); Williams 

v. City of Petersburg, 216 Va. 297, 298, 301, 217 S.E.2d 893, 

894, 896 (1975) (defendant found slumped over steering wheel of 

4
vehicle on a paved parking lot with motor running, headlights 

not burning, car doors closed and locked); Lyons v. City of 

Petersburg, 221 Va. 10, 11-13, 266 S.E.2d 880, 880-82(1980) 

(defendant found seated behind steering wheel of car but made no 

statement about his striking of an unoccupied parked car in the 

rear and knocking it 25 to 30 feet). 

 We reversed convictions in the following two cases: 

Overbee v. Commonwealth, 227 Va. 238, 240, 243, 245, 315 S.E.2d 

242, 243-45 (1984) (defendant found standing in front of pickup 

with hood up, engine not running, key not in ignition); 

Stevenson v. City of Falls Church, 243 Va. 434, 438, 416 S.E.2d 

435, 438 (1992). 

Stevenson is the focal point of the argument of the parties 

in this case. There, in the early morning hours, the defendant 

was found asleep behind the steering wheel of a car located on a 

convenience store parking lot. The engine and all other 

mechanical and electrical parts were turned off. There was a 

key in the ignition, but the arresting officer could not recall 

whether the key was in the “on” or the “off” position. 243 Va. 

at 435, 416 S.E.2d at 436. 

 We stated as follows: 

 In Williams, . . . we pointed out that “operating” a 

vehicle within the proscription of the drunk driving 

statute 

5
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. 

. . . . 

We adhere to our holding in Williams and apply it here. It 

was not recalled whether the key was in the “on” or “off” 

position. And, on appeal, we must assume that the key was 

in the off position. 

 Because the presence of the key in the ignition switch 

in the off position did not engage the mechanical or 

electrical equipment of Stephenson’s car, Stevenson did not 

“drive or operate” the car within the meaning of the 

statutes that were incorporated by reference in the Falls 

Church ordinance. 

Id. at 438, 416 S.E.2d at 438 (emphasis and internal quotation 

marks omitted). 

 Nelson says that Stevenson is indistinguishable and that we 

must assume here, as we did there, that the ignition key in the 

offending car was in the “off” position. Therefore, Nelson 

continues, we must hold here that because the ignition key was 

in the off position he did not engage the mechanical or 

electrical equipment of his car and did not “drive or operate” 

the car within the meaning of Code § 18.2-266. 

 We disagree that we must assume that the ignition key in 

Nelson’s car was in the “off” position. Nelson states on brief 

that Officer Benedict “could not recall what position the key 

6
was in.” This is an incorrect statement. Officer Benedict 

never said he could not recall the status of the ignition key. 

Rather, he stated unequivocally that the key was in the “on or 

accessory” position, and his testimony left no doubt it was the 

key, whether in an “on” position or an “accessory” position, 

that turned on the “factory mounted radio.” 

 Nelson states, however, that the Commonwealth’s evidence 

did not exclude the “reasonable hypothesis” that his “vehicle 

could have been one of many models in which a key is not 

required to activate the radio.” (Emphasis added.) Nelson also 

says that the Commonwealth’s evidence “did not preclude the 

possibility that Mr. Nelson’s car was one of [the] many with a 

safety feature requiring the key to be turned backward from the 

‘off’ position before it will release.” (Emphasis added.) But 

there was no burden on the Commonwealth to negate what “could 

have been” or what was a “possibility.”2

 2

 Nelson says that “the Commonwealth conceded in closing 

argument that its evidence did not prove the position of the 

key.” The following is the purported concession: 

 “It makes a big difference between the accessory of the jeep, 

and kind of glibly says that, gee, you can’t move the gear 

shift unless it’s in whatever. We don’t know that about this 

particular jeep. We don’t know that.” 

The Commonwealth made this purported concession in response to 

Nelson’s assertion that no individual can move a car with the 

key in the accessory position because one “can’t even move the 

gear shift from the accessory position.” This purported 

concession does not change the outcome of this case. 

7
 Nelson argues that “[e]ven if this Court finds that the key 

was not in the ‘off’ position, Mr. Nelson still was not 

operating a motor vehicle.” “There is no meaningful 

distinction,” Nelson says, “between the act of putting the key 

into the ignition slot and the act of turning it forward or 

backward to operate the accessories.” “In either case,” Nelson 

continues, “there is no nexus between Mr. Nelson’s action and 

the motive power of the vehicle because activating the radio is 

not part of the sequence of activating the motive power of the 

vehicle.” Nelson concludes that “[b]y holding in Stevenson that 

putting a key in the ignition is not operating, [this Court] 

acknowledged that putting the key in the ignition is not an 

action which could alone or in sequence activate the motive 

power of the vehicle.” 

 We have read and re-read the page of Stevenson cited by 

Nelson, 243 Va. at 437, 416 S.E.2d at 437, and have been unable 

to find where we held that “putting a key in the ignition is not 

operating” or where we said anything else amounting to an 

acknowledgement that “putting the key in the ignition is not an 

action which could alone or in sequence activate the motive 

power of the vehicle.” Indeed, the words “motive power” do not 

appear anywhere on that page. They appear on the following page 

in the definitional paragraph quoting Williams, noted above, 

which does not contain any kind of acknowledgement on our part. 

8
 In any event, Stevenson does not support Nelson’s claim 

that “activating the radio is not part of the sequence of 

activating the motive power of the vehicle.” The question 

whether the motive power was activated was not reached in 

Stevenson. The conviction was reversed solely because the key 

was in the “off” position and therefore “did not engage the 

mechanical or electrical equipment of Stevenson’s car [and] 

Stevenson did not ‘drive or operate’ the car within the meaning 

of the statutes that were incorporated by reference in the Falls 

Church ordinance.” 243 Va. at 438, 416 S.E.2d at 438. 

 Here, the 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.” 

Operating” means “engaging the machinery of the vehicle which 

alone, or in sequence, will activate the motive power of the 

vehicle.” Id. (Emphasis added.) 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. 

9
CONCLUSION 

 For the reasons assigned, we will affirm the judgment of 

the Court of Appeals. 

Affirmed. 

JUSTICE KOONTZ, dissenting. 

 I respectfully dissent. Although the issue of what is 

contemplated by the term to “operate” a vehicle contained in 

Code § 18.2-266 and its predecessors has vexed the courts of 

this Commonwealth for more than forty-five years, in my view, 

the resolution of that issue could not be more straightforward. 

As was observed by the dissent in Williams v. City of 

Petersburg, the provision now codified as Code § 18.2-266 is 

“designed to prohibit and punish a person for ‘operating,’ not 

for ‘occupying,’ a vehicle while under the influence of 

alcohol.” 216 Va. 297, 303, 217 S.E.2d 893, 898 (1975) 

(Harrison, J., joined by Cochran and Poff, JJ., dissenting). 

The truth of that observation is unassailable. Today, however, 

the majority of this Court permits the defendant to be convicted 

of violating Code § 18.2-266 where the defendant, while 

occupying the vehicle and under the influence of alcohol, was 

merely listening to the vehicle’s radio. 

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

shall be unlawful for any person to drive or operate any motor 

vehicle . . . while such person is under the influence of 

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alcohol.” (Emphasis added.) The term “drive” has an obvious 

meaning that includes putting the vehicle in motion. The term 

“operate” has a less obvious meaning and, consequently, has been 

the subject of a number of our prior cases. The majority 

opinion reviews those cases in which, for purposes of construing 

the meaning of the term “operate,” we have held under the 

particular facts of each case that the defendant was operating a 

vehicle while under the influence of alcohol. Significantly, in 

each case the evidence established that the defendant was in the 

vehicle with the motor of the vehicle running. See, e.g., 

Williams, 216 Va. at 298, 217 S.E.2d at 894; Nicolls v. 

Commonwealth, 212 Va. 257, 258, 184 S.E.2d 9, 10 (1971); 

Gallagher v. Commonwealth, 205 Va. 666, 667, 139 S.E.2d 37, 38 

(1964). 

 In Williams, we concluded that “operating” a vehicle has a 

broader meaning than “driving” a vehicle. We concluded that in 

addition to the process of moving the vehicle from one place to 

another, operating “includes starting the engine, or 

manipulating the mechanical or electrical equipment of the 

vehicle without actually putting the [vehicle] in motion. It 

means engaging the machinery of the vehicle which alone, or in 

sequence, will activate the motive power of the vehicle.” 216 

Va. at 300, 217 S.E.2d at 896. 

11
It is the application of the last sentence of this quoted 

language that subsequently was revisited in Stevenson v. City of 

Falls Church, 243 Va. 434, 416 S.E.2d 435 (1992), and is the 

focus of the present appeal. In Stevenson, the intoxicated 

defendant was found inside a vehicle and asleep behind the 

steering wheel. The key was in the ignition in the “off” 

position. The motor of the vehicle was not running and all of 

its other mechanical and electrical equipment were off. Id. at 

435, 438, 416 S.E.2d at 436, 438. A majority of the Court held 

that because the presence of the key in the ignition did not 

engage the mechanical or electrical equipment of the vehicle, 

the defendant did not “operate” the vehicle within the meaning 

of Code § 18.2-266. Id. at 438, 416 S.E.2d at 438. 

 In the present case, the defendant while intoxicated was 

found inside a vehicle, “hunched over” in the driver’s seat, and 

either asleep or unconscious. The motor of the vehicle was not 

running and the gearshift lever was in the “park position.” 

However, the key to the vehicle’s ignition was in the “on or 

accessory position” so as only to permit the activation of the 

vehicle’s radio using the electrical power of the vehicle’s 

battery. The radio was emitting music when the police 

approached the vehicle. 

 The dispositive question in this appeal then becomes 

whether these facts satisfy the test of “engaging the machinery 

12
of the vehicle which alone, or in sequence, will activate the 

motive power of the vehicle.” The majority goes to some length 

to find a distinction between the significance of a key in the 

ignition in the “off” position as was deemed the fact in 

Stevenson and, as here, a key in the ignition in an “on or 

accessory position” that turned on the vehicle’s radio. In my 

view, the majority labors to find a distinction without 

significance. 

 Manipulating the key to the ignition of the vehicle so that 

the vehicle’s radio functioned would not and could not “alone” 

activate the motive power of the vehicle. Nor could that act in 

sequence do so. It is a matter of common understanding and 

experience that the key had to be placed in the position 

engineered to activate the motive power of the vehicle rather 

than the position of the key engineered to activate the 

vehicle’s radio. 

 In short, the evidence in this case established that the 

defendant while intoxicated occupied the vehicle and activated 

the vehicle’s radio, but it fails to establish that he 

“operated” the vehicle. Accordingly, I would reverse the Court 

of Appeals judgment affirming the defendant’s conviction for 

violating Code § 18.2-266 and vacate that conviction. 

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