Commonwealth v. Rivers

On March 10, 1992, the Court heard the evidence in the case of Mr. Roderick Lee Rivers who was charged with operating a motor vehicle while under the influence of alcohol. The Court deferred a decision at that time to do some research and reflect on the issue as to whether the defendant was operating the vehicle as defined by the statutes and case law. Based on the evidence, the Court finds that the defendant was operating the vehicle. The defendant, the sole occupant, was found asleep in the car with the lower portion of his body in the seat behind the wheel and his feet near the operating pedals. The car was stopped in the middle of the road, with the doors locked, the headlights on, and the key in the ignition in the “on” position. Although the engine was not running, the car was in the “drive” position.

Although the word “operate” is not defined under § 18.2-266 of the Code of Virginia, 1950, as amended, the word “operator” is defined, in part, in § 46.2-100 as “every person who drives or is in actual physical control of a motor vehicle.” This definition of “operator” has been approved for the purpose of determining whether one “operates” a motor vehicle within the meaning of § 18.2-266. See, Nicolls v. Commonwealth, 212 Va. 257 (1971); Lyon v. City of Petersburg, 221 Va. 10 (1980); and Overbee v. Commonwealth, 227 Va. 238 (1984). Moreover, the word “operate” is not limited to the *265movement of the vehicle. Nicolls v. Commonwealth. Therefore, no actual movement of the vehicle must take place for the defendant to operate the vehicle under § 18.2-266.

Based on the above, the Court finds that the defendant was in actual physical control of the motor vehicle and therefore did operate the vehicle. The Court finds the defendant guilty of operating a motor vehicle while under the influence of alcohol and fixes the punishment as follows: a fine of $500.00; 90 day jail sentence with 85 days suspended; six months revocation of operator’s license; and two years probation.