COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Annunziata and Overton 

Argued at Norfolk, Virginia 

JAMES BERNARD PROPST 

 OPINION 

v. Record No. 0347-96-1 BY JUDGE JOSEPH E. BAKER 

 JUNE 3, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY 

Westbrook J. Parker, Judge 

 Archer L. Jones, II (Jones & Jones, P.C., on 

brief), for appellant. 

 Kimberley A. Whittle, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 James Bernard Propst (appellant) appeals his bench trial 

conviction for driving or operating a motor vehicle while 

intoxicated in violation of Code § 18.2-266. Appellant contends 

that the Commonwealth failed to prove that he was "operating" a 

motor vehicle while intoxicated and that his conviction should 

therefore be reversed. We disagree and affirm appellant's 

conviction. 

 On appeal, 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). Viewed accordingly, the 

evidence establishes that on July 25, 1995, at approximately 9:32 

p.m., Trooper Scott Burgett was dispatched to investigate a 

vehicle stopped in the intersection of Routes 665 and 711. He 
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arrived at the intersection and found appellant's pickup truck 

stopped in the roadway. The truck was situated in the travel 

lane of Route 665. The truck's hood was protruding into the 

intersection beyond the plane of a stop sign which controlled 

traffic entering Route 711 from Route 665. The truck's 

headlights and tail lights were on. 

 Burgett approached the truck and found appellant asleep in 

the driver's seat with his seat belt fastened and the driver's 

side window down. The truck's engine was not running. Burgett 

noticed that the dashboard lights were illuminated, including two 

red warning lights. The key was in the ignition, and the manual 

gearshift was in either first or third gear. Burgett, however, 

said that he could not state with certainty that the ignition 

switch was in the on position. Burgett found a pizza on the 

front seat and beer on the floor of the truck. 

 Burgett woke appellant. Appellant stated that he had 

experienced some problems with his wife and that he had been 

"driving around." Appellant told Burgett he had stopped for a 

pizza and was on his way home. Burgett smelled a strong odor of 

alcohol on appellant. Appellant's face was flushed, his eyes 

were bloodshot, and his clothing was very disheveled. Burgett 

asked appellant to perform several field sobriety tests. He 

failed all of them. Appellant admitted he had consumed two beers 

about two hours earlier. 

 Burgett placed appellant under arrest for driving under the 
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influence and transported him to the Smithfield Police Department 

for a breath analysis. Appellant's blood alcohol content was 

0.18 percent at 11:12 p.m., more than twice the legal limit. 

 Appellant asserts that the Commonwealth failed to prove his 

guilt beyond a reasonable doubt because the evidence did not show 

that the ignition of his truck was "on" or that the motor was 

running. Therefore, he argues that the evidence is insufficient 

to convict him. We disagree. 

 "Operator" is defined in Code § 46.2-100 to include "[e]very 

person who drives or is in actual physical control of a motor 

vehicle on a highway" or who "is exercising control over or 

steering a vehicle being towed by a motor vehicle." Contrary to 

appellant's assertion, neither this Court nor the Virginia 

Supreme Court has fashioned a bright line rule that a vehicle's 

motor must be running or its ignition switch must be in the "on" 

position for a defendant to be convicted of driving or operating 

a motor vehicle while intoxicated in violation of Code 

§ 18.2-266. 

 Appellant relies upon Stevenson v. City of Falls Church, 243 

Va. 434, 416 S.E.2d 435 (1992), and Williams v. City of 

Petersburg, 216 Va. 297, 217 S.E.2d 893 (1975). However, his 

reliance is misplaced. In Williams, the defendant's conviction 

was affirmed on the basis that the engine was running and when a 

policeman tapped on the window of the vehicle the defendant made 

a motion toward the gearshift. Id. at 301, 217 S.E.2d at 896. 
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Stevenson's conviction was reversed not only because his engine 

was off but because none of the vehicle's mechanical or 

electrical equipment was engaged. Stevenson, 243 Va. at 435, 416 

S.E.2d at 436. In Stevenson, the officer could not recall the 

position of the ignition switch. Id. Neither case sets forth a 

bright line rule that in order for a defendant to be convicted 

under Code § 18.2-266, the vehicle's ignition switch must be 

engaged or its motor running. Instead, Stevenson and Williams

merely suggest that these are factors which a trial court should 

consider. 

 "'[O]perating' a vehicle within the proscription of the 

drunk driving statute '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.'" Id. at 438, 416 S.E.2d at 437 (citation omitted). In 

Lyons v. Petersburg, 221 Va. 10, 266 S.E.2d 880 (1980), a 

defendant was convicted under a City of Petersburg driving under 

the influence ordinance because the defendant was found at the 

scene of an accident behind the steering wheel of a vehicle. Id.

at 12, 266 S.E.2d at 881. The Virginia Supreme Court noted that 

"[i]t can be inferred that Mr. Lyons' car was where it was at the 

time because he drove it there, and that the accident . . . 

occurred at a time when Lyons was in actual physical control of 

and operating his own vehicle." Id. at 13, 266 S.E.2d at 881. 
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 Burgett found appellant's truck in the travel lane 

protruding into the intersection. The truck's headlights and 

tail lights were illuminated, and its key was in the ignition 

switch. The truck was in either first or third gear. Appellant 

had his safety belt fastened and admitted he had been driving 

around and was "headed home." The trial court correctly 

concluded from this circumstantial evidence that the only 

plausible way for the truck to have arrived at the intersection 

was for appellant to have driven it there while under the 

influence of alcohol. 

 Appellant's blood alcohol content was more than twice the 

legal limit, and, by his own admission, he had moved the vehicle 

from one place to another. Clearly, the circumstantial evidence 

was sufficient for the trial court to convict appellant. 

 Accordingly, for the foregoing reasons, appellant's 

conviction is affirmed. 

 Affirmed.