As Corrected December 9, 2014.
FROM THE COURT OF APPEALS OF VIRGINIA.
David L. Heilberg (Dygert, Wright, Hobbs & Heilberg, on briefs), for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
OPINION BY JUSTICE DONALD W. LEMONS. JUSTICE MIMS, dissenting. JUSTICE McCLANAHAN, with whom CHIEF JUSTICE KINSER joins, dissenting.
DONALD W. LEMONS, J.
[288 Va. 322] Present: All the Justices
In this opinion we consider the definition of " operate" and whether such operation must be " on a highway" to sustain a conviction for driving under the influence pursuant to Code § 18.2-266.
I. Facts and Proceedings Below
On January 20, 2011, Officer K.E. McBrearty of the Charlottesville Police Department responded to a noise complaint at 1001 Page Street in Charlottesville. When Officer McBrearty arrived at the scene, she observed Justin Sarafin (" Sarafin" ) sitting in the driver's seat of his vehicle, which was parked in his private driveway. Sarafin was asleep - although the key was in the ignition and was turned backward to activate the vehicle's auxiliary power. McBrearty
knocked on the window and Sarafin awoke, turned off the vehicle's auxiliary power, and exited the vehicle.
Once Sarafin was outside the vehicle, McBrearty smelled alcohol and noticed his eyes were bloodshot and glassy. She questioned Sarafin about his activities that evening, and he admitted to consuming several beers at a local pub, picking up dinner at a different location, driving [288 Va. 323] home, consuming more alcohol, and then returning to his vehicle to listen to the radio. Sarafin stated he never intended to leave his driveway and, in fact, had fallen asleep around 2:30 a.m. while listening to music.
Officer McBrearty administered several field sobriety tests. Sarafin failed three out of five. Officer McBrearty also administered a preliminary breath test and, based on those results, arrested Sarafin for operating a vehicle under the influence of alcohol in violation of Code § 18.2-266.
Sarafin's first trial in the Circuit Court for the City of Charlottesville (" circuit court" ) resulted in a hung jury. Prior to his second trial, Sarafin filed a motion requesting a determination of the legal definition of " operate" and " operation." He then filed a pretrial " motion to strike," arguing he could not be convicted under Code § 18.2-266 because he was on private property and, alternatively, there was no evidence that he ever intended to activate the motive power of the vehicle. The circuit court never addressed Sarafin's pre-trial motions, and the case proceeded to trial.
Following the Commonwealth's case-in-chief, Sarafin moved to strike the evidence. The circuit court took this motion under advisement. Sarafin presented several witnesses, testified on his own behalf and renewed his motion to strike which the circuit court again took under advisement. He then proposed jury instructions I, J, K and L. The circuit court refused Sarafin's instructions and granted the Commonwealth's Instruction 6 over his objections.
The jury returned a guilty verdict and affixed punishment at a $500 fine. In its conviction order dated November 7, 2012, the circuit court imposed the jury's verdict and, in addition, revoked Sarafin's operator's license for 12 months.
Sarafin appealed his conviction to the Court of Appeals of Virginia, arguing that there was insufficient evidence to convict him of violating Code § 18.2-266 because he was not " operating" the vehicle on a highway, and that the circuit court erred by refusing his jury instructions. In its published opinion, Sarafin v. Commonwealth, 62 Va.App. 385, [288 Va. 324] 748 S.E.2d 641 (2013), the Court of Appeals affirmed Sarafin's conviction.
The Court of Appeals held that under this Court's precedents, Sarafin had actual physical control of the vehicle and was therefore " operating" his vehicle within the meaning of Code § 18.2-266. Sarafin, 62 Va.App. at 393-402, 748 S.E.2d at 645-49 (citing Enriquez v. Commonwealth, 283 Va. 511, 516-17, 722 S.E.2d 252, 255 (2012)). Citing some of its earlier decisions, the Court of Appeals held that " public ownership of the property upon which the vehicle is driven or operated is not an element the Commonwealth must prove in a prosecution for driving in violation of Code § 18.2-266." Id. at 398, 748 S.E.2d at 647 (quoting Mitchell v. Commonwealth, 26 Va.App. 27, 35, 492 S.E.2d 839, 843 (1997)(citing Gray v. Commonwealth, 23 Va.App. 351, 353, 477 S.E.2d 301, 302-03 (1996)). The Court of Appeals concluded that any reference to " on a highway" in Enriquez, 283 Va. at 516-17, 722 S.E.2d at 255, was dicta. Sarafin, 62 Va.App. at 400-01, 748 S.E.2d at 648. Based on these definitional holdings, the Court of Appeals affirmed the circuit court's refusal of Sarafin's proffered jury instructions. Id. at 402-03, 748 S.E.2d at 649.
Sarafin appealed the judgment of the Court of Appeals to this Court, and we
awarded an appeal on the following assignments of error:
1. The Virginia Court of Appeals erred by permitting the trial court to find that Justin Sarafin (" Sarafin" ) was in physical control of his vehicle and thereby that he was its " operator" while asleep with only his car radio playing while parked on his private property.
a. The Virginia Court of Appeals erred by finding that these facts were sufficient to support the trial court's conviction.
2. The Virginia Court of Appeals erred in construing Va. Code § 18.2-266 to allow conviction for " operation" on private property.
3. The Virginia Court of Appeals erred by not requiring the trial court to give any or all of Instructions I, J, K and L offered by Sarafin that precisely and correctly defined what constituted " operation" to the jury.
[288 Va. 325] II. Analysis
A. Standard of Review
Assignments of error 1 and 2 require us to interpret the meaning of " operate [a] motor vehicle" as used in Code § 18.2-266 and whether " operation" on private property is within the scope of the statute. Questions of statutory interpretation are reviewed de novo. Belew v. Commonwealth,284 Va. 173, 177, 726 S.E.2d 257, 259 (2012). Whether Sarafin operated his vehicle in a manner which violated Code § 18.2-266 is a mixed question of law and fact ...