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Stevenson v. City of Falls Church4/17/1992
Opinion BY JUSTICE HENRY H. WHITING
The sole issue in this appeal is whether the evidence is sufficient to support the trial court's finding that the accused was operating a motor vehicle while intoxicated.
Falls Church (the city) adopted an ordinance effective July 1, 1989, which incorporated by reference into the city code the provisions of Code §§ 18.2-266, et seq. and 46.1-168, et seq. that pertained to "driving motor vehicles while intoxicated."
The parties stipulated that:
1. On July 6, 1989, in the early morning hours, Officer Bankr. Darden of the Falls Church City Police Department found the Defendant [John T. Stevenson] inside of a motor vehicle asleep, behind the steering wheel. The vehicle was located on a 7-11 parking lot in the City of Falls Church. The key was in the ignition but it was not recalled whether the key was in the "on" or "off" position. The engine of the motor vehicle, and all of its other mechanical and electrical parts were off.
2. It was not known how the motor vehicle arrived at the parking lot, and how long it had been at that location.
3. Officer Darden awoke the Defendant, at which time it became apparent to her that he was intoxicated, and Defendant stipulated that he was intoxicated at that time. She then placed him under arrest and subsequently obtained a warrant [that charged Stevenson with a violation of the City of Falls Church drunk driving ordinance].
Upon his conviction of drunk driving by the general district court, Stevenson appealed to the Circuit Court of Arlington County. In a bench trial, that court also found him guilty, and Stevenson appealed to the Court of Appeals. In an unpublished opinion, the Court of Appeals affirmed the circuit court, holding that Stevenson was the "operator" of his car within the proscription of Code § 18.2-266 because he was "in actual physical control of the motor vehicle."
Initially, we review several well-established legal principles before considering Stevenson's argument that the proof is insufficient to establish his "actual physical control of a motor vehicle" within the meaning of Code § 46.1-1(17). Those principles are:
Penal statutes are to be strictly construed against the Commonwealth and in favor of the citizen's liberty. . . . Such statutes may not be extended by implication; they must be applied to cases clearly described by the language used. . . . And the accused is entitled to the benefit of any reasonable doubt about the construction of a criminal statute.
Martin v. Commonwealth, 224 Va. 298, 300-01, 295 S.E.2d 890, 892 (1982) (citations omitted). And, those principles apply to our constructions of penal ordinances. See Rollins v. Town of Gordonsville, 216 Va. 25, 26, 215 S.E.2d 637, 638 (1975).
On brief, the city argues that this Court has not adopted "a bright line test that requires some part of the car to be in motion -- either the key to be turned 'on', wires being connected, or some other action like putting the car in gear." Expanding upon this, the city contends that:
It does not matter whether the motor is running or idle nor whether the drunk is in the front seat or the back seat. His potentiality for harm is lessened but not obviated by a silent motor or a back seat position, provided, of course, he is the one in control of the car. It takes only a flick of the wrist to
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