 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Graham v. Commonwealth6/22/1993
BY JUDGE JOSEPH E. BAKER
Larry Edward Graham (appellant) appeals from a judgment of the Circuit Court of the City of Roanoke (trial court) that approved his jury trial conviction for second offense driving under the influence . He contends that the evidence was insufficient to support the conviction. In addition, he asserts that the trial court erred when it refused to require the Commonwealth to elect under which section of Code § 18.2-266 it intended to proceed, and that it improperly instructed the jury on the definition of operating a motor vehicle.
We first address the sufficiency issue. In doing so, we state the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
Early in the morning of May 26, 1991, Roanoke Police Sergeant J.R. Ratcliffe heard a radio dispatch that shots had been fired near the intersection of Second Street and Church Avenue in Roanoke. Ratcliffe immediately drove to that intersection, where he saw a pickup truck that met the description given by the dispatcher. The truck was stopped in the right turn lane. Ratcliffe parked his police car behind the truck and activated his blue light. The only occupant of the truck was appellant. As Ratcliffe approached the truck, he could hear its motor running and observed that appellant was sitting behind its wheel. When Ratcliffe arrived opposite the driver's door, the truck motor had been shut off and the keys to the ignition switch were on the dashboard.
Ratcliffe detected an odor of alcohol coming from the truck and advised appellant of his Miranda rights. When asked, appellant admitted to having had "two drinks of vodka," none after the police arrived. Ratcliffe advised appellant of his right to a breath or blood test pursuant to the implied consent laws. Appellant chose to take a blood test that subsequently revealed a .24 blood alcohol content. Appellant admitted that he thought he was legally intoxicated. The evidence supports appellant's belief.
Two police officers testified that they saw appellant behind the wheel of his stopped pickup truck, with the motor running, on a public street at an intersection in the City of Roanoke. Appellant's blood alcohol content far exceeded the minimum limit for presuming he was under the influence of alcohol. An abundance of evidence establishes that appellant was under the influence of alcohol while operating a motor vehicle.
In Nicolls v. Commonwealth, 212 Va. 257, 184 S.E.2d 9 (1971), the accused, while under the influence of alcohol, was shown to have been discovered stopped on a public street, "slumped" over the steering wheel of a car with the motor running. The accused presented evidence that the transmission of the car was in disrepair so that the vehicle could not be moved. The Court said:
In order to convict the defendant it was 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.
184 S.E.2d at 10. The Court noted that Code § 18.2-266 made it unlawful to drive or operate a motor vehicle while under the influence of alcohol and further said:
In Gallagher v. Commonwealth, 205 Va. 666, 139 S.E.2d 37 (1964), we held that the meaning of the word "operate" as used in § 1
Page 1 2 3 Virginia DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|