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Graham v. Commonwealth6/22/1993
The prosecution need only show the accused was under the influence of alcohol, or had an excessive blood alcohol content, and while in that condition was "in actual physical control of the vehicle." See Nicolls, 212 Va. at 259, 184 S.E.2d at 11; Gallagher, 205 Va. at 670, 139 S.E.2d at 40. In Nicolls, the uncontradicted evidence showed the vehicle was under the accused's physical control but was incapable of being driven or moved from one place to another due to a defective transmission. 212 Va. at 258, 184 S.E.2d at 10. In the present case, reference to the term, "driving," or the phrase, "moving from one place to another," would have misled the jury as to the burden of proof required for conviction. The trial court did not err in refusing to grant Instructions A and B.
For the reasons stated, the judgment of the trial court is affirmed. Affirmed.
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