It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (v) while such person has a blood concentration of any of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood. A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii), (iv), or (v).
For the purposes of this article, the term “motor vehicle” includes mopeds, while operated on the public highways of this Commonwealth.
DRIVING AN AUTOMOBILE MEANS PUTTING IT IN MOTION. Gallagher v. Commonwealth, 205 Va. 666, 139 S.E.2d 37 (1964).
BUT THE WORD “OPERATE” IS NOT LIMITED TO MOVING THE VEHICLE from one place to another. Gallagher v. Commonwealth, 205 Va. 666, 139 S.E.2d 37 (1964); Lyons v. City of Petersburg, 221 Va. 10, 266 S.E.2d 880 (1980).
The meaning of the word “operate” as used in this section is not limited to the movement of the vehicle. Nicolls v. Commonwealth, 212 Va. 257, 184 S.E.2d 9, (1971).
The word “operate” is not defined in this section, but the word “operator” is defined, in part, in § 46.1-1 (17) (see now § 46.2-100) as “every person who drives or is in actual physical control of a motor vehicle,” and this definition is approved for the purpose of determining whether one “operates” a motor vehicle within the meaning of this section. Nicolls v. Commonwealth, 212 Va. 257, 184 S.E.2d 9, (1971); Lyons v. City of Petersburg, 221 Va. 10, 266 S.E.2d 880 (1980).
The language of this section is to be construed to mean that 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, 527 S.E.2d 473, 2000 Va. App. LEXIS 295 (2000).
“OPERATING” INOPERABLE VEHICLE. –The contention that a defendant cannot be convicted of operating an inoperable vehicle is without merit, since a motor vehicle is defined in § 46.1-1 (15) (see now § 46.2-100) as “every vehicle as herein defined which is self-propelled or designed for self-propulsion.” Nicolls v. Commonwealth, 212 Va. 257, 184 S.E.2d 9, (1971). Where defendant was arrested after the officer found him sitting at the steering wheel of his car, which was stuck in a ditch, with the motor running and the right rear wheel spinning, it was held that he was operating the vehicle and that his conviction was proper under this section, for it prohibits operation as well as driving of a vehicle while intoxicated. Gallagher v. Commonwealth, 205 Va. 666, 139 S.E.2d 37 (1964).
NO BRIGHT LINE RULE FOR “OPERATING” OR “DRIVING.” –Neither the court of appeals nor the state 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 this section. Propst v. Commonwealth, 24 Va. App. 791, 485 S.E>2d 657 (1997).
VIOLATION MAY OCCUR IN PARKING LOT. –This statute does not specify that the driving or operating that it criminalizes must occur on a public highway; thus defendant could properly be convicted of drunk driving for such conduct in a parking lot. Gray v. Commonwealth, 23 Va. App. 351, 477 S.E.2d 301 (1996).
VIOLATION OF SECTION AS NEGLIGENCE. –If defendant was driving his car while under the influence of intoxicants, he violated this section and that was negligence. Yet it was not his intoxication but his negligence that had to be the proximate cause of the mishap before there could be a finding against him because of his conduct in that respect. Bogstad v. Hope, 199 Va. 453, 100 S.E.2d 745 (1957).
THE BURDEN IS ON THE COMMONWEALTH to prove that the defendant was under the influence of intoxicants, not on the defendant to prove that he was not. The Commonwealth’s evidence must exclude every reasonable hypothesis of innocence. Until that is done the defendant is not required to explain or to offer evidence of his innocence. Clemmer v. Commonwealth, 208 Va. 661, 159 S.E.2d 664 (1968).
In order to convict the defendant, it is necessary that the Commonwealth establish two things: (1) that the defendant was operating or driving a motor vehicle, and (2) that he was under the influence of intoxicants at the time he was driving or operating it. Nicolls v. Commonwealth, 212 Va. 257, 184 S.E.2d 9 (1971).
The Commonwealth bears the burden of proving that the accused was driving under the influence of alcohol or other self-administered intoxicant. Miller v. Commonwealth, 214 Va. 689, 204 S.E.2d 268 (1974).