Sarafin v. Commonwealth
Unreported, October 31, 2014 (2014)
Rule of Law:
An intoxicated person is deemed to be 'operating' a motor vehicle for DUI purposes under Code § 18.2-266 if they are in actual physical control of the vehicle, regardless of whether the vehicle is on a public highway or private property.
Facts:
- Officer K.E. McBrearty of the Charlottesville Police Department responded to a noise complaint at 1001 Page Street in Charlottesville.
- Officer McBrearty observed Justin Sarafin asleep in the driver's seat of his vehicle, which was parked in his private driveway.
- The vehicle's key was in the ignition, turned backward to activate its auxiliary power (radio).
- Sarafin awoke, turned off the auxiliary power, and exited the vehicle upon Officer McBrearty's knock.
- Once outside the vehicle, Officer McBrearty smelled alcohol and noticed Sarafin's eyes were bloodshot and glassy.
- Sarafin admitted to consuming several beers at a local pub, driving home, consuming more alcohol, and then returning to his vehicle to listen to the radio, where he fell asleep.
- Officer McBrearty administered several field sobriety tests, three of which Sarafin failed, and a preliminary breath test.
Procedural Posture:
- Sarafin's first trial in the Circuit Court for the City of Charlottesville (trial court) resulted in a hung jury.
- Prior to his second trial, Sarafin filed a motion in the circuit court requesting a determination of the legal definition of 'operate' and 'operation'.
- Sarafin also filed a pretrial 'motion to strike' in the circuit court, arguing he could not be convicted because he was on private property and lacked intent to activate motive power, which the circuit court never addressed.
- Following the Commonwealth's case-in-chief in the second trial, Sarafin moved to strike the evidence; the circuit court took this motion under advisement.
- Sarafin renewed his motion to strike after presenting witnesses and his own testimony; the circuit court again took it under advisement.
- The circuit court refused Sarafin's proposed jury instructions I, J, K, and L, and granted the Commonwealth's Instruction 6.
- A jury returned a guilty verdict, and the circuit court entered a conviction order.
- Sarafin appealed his conviction to the Court of Appeals of Virginia (intermediate appellate court), arguing insufficient evidence because he was not 'operating' the vehicle on a highway and that the circuit court erred by refusing his jury instructions.
- The Court of Appeals of Virginia affirmed Sarafin's conviction.
- Sarafin appealed the judgment of the Court of Appeals to the Supreme Court of Virginia (highest court), which awarded an appeal on specific assignments of error.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does Virginia's DUI statute, Code § 18.2-266, apply to an intoxicated person found asleep in the driver's seat of a vehicle on private property with the key in the ignition, and must such 'operation' occur on a public highway to sustain a conviction?
Opinions:
Majority - Justice Donald W. Lemons
Yes, Sarafin was operating his vehicle under Code § 18.2-266, and no, the statute does not require such operation to occur on a public highway for motor vehicles. The Court affirmed Sarafin's conviction, holding that 'operating' a motor vehicle for DUI purposes is defined by being in 'actual physical control' of the vehicle. This standard, established in prior cases like Nelson v. Commonwealth and Enriquez v. Commonwealth, is met when an intoxicated person is seated behind the steering wheel with the key in the ignition switch. Sarafin met this criterion because he was in the driver's seat with the key in the ignition, even if only in the auxiliary position. Regarding the 'on a highway' requirement, the Court held that the plain language of Code § 18.2-266 explicitly includes this requirement only for mopeds, but not for other motor vehicles, engines, or trains. Applying the rule of statutory construction that the General Assembly's omission of specific language in one part of a statute, when included elsewhere, signifies intentional difference, the Court concluded no such requirement exists for motor vehicles. The Court further noted that the statute applies to trains, which operate on private tracks, supporting the interpretation that a public highway is not universally required. The Court clarified that any reference to 'on a public highway' in its previous Enriquez decision, regarding actual physical control, was unbinding dicta because the location of the vehicle was not at issue or argued by the parties in that case. Consequently, the circuit court properly refused Sarafin's proposed jury instructions that would have included an 'on a highway' requirement and correctly granted the Commonwealth's instruction which did not.
Dissenting - Justice Mims
No, Sarafin was not guilty of operating a vehicle under Code § 18.2-266 for conduct on private property, as the 'actual physical control' standard articulated in Enriquez v. Commonwealth, which the majority relies upon, explicitly includes a public highway element. Justice Mims argued that the 'on a public highway' language in Enriquez was not dicta but was essential to that decision, as the Court explicitly 'turned for assistance to Code § 46.2-100,' which defines 'operator' as being in actual physical control of a motor vehicle 'on a highway.' Therefore, the Enriquez standard, which directly flows from Code § 46.2-100, requires the vehicle to be on a public highway. The dissent contended that the General Assembly's inaction since Enriquez indicates its acquiescence to this interpretation. Furthermore, the argument regarding trains is irrelevant because Code § 46.2-100's definition of 'motor vehicle' excludes devices used exclusively on stationary rails or tracks. The prior cases cited by the majority (Valentine and Williams) are distinguishable and do not support the majority's conclusion. Justice Mims concluded that by removing the public highway element, the Court moves toward punishing mere occupancy rather than operation of a vehicle.
Dissenting - Justice McClanahan
No, the majority's decision improperly overturns a half-century of consistent precedent, starting with Gallagher v. Commonwealth in 1964, which established an 'on a highway' element for DUI convictions. Justice McClanahan, joined by Chief Justice Kinser, asserted that the Court in Gallagher, and consistently since, incorporated the full definition of 'operator' from the Motor Vehicle Code (then Code § 46.1-1(17), now Code § 46.2-100) into the DUI statute, and that definition explicitly includes the requirement that operation occurs 'upon a highway.' It is illogical, the dissent argued, to selectively adopt the 'actual physical control' part of that definition while rejecting the 'on a highway' part, when both elements were derived from the exact same statutory source and incorporated in toto. The dissent emphasized that while the DUI statute itself does not explicitly contain the 'on a highway' requirement, neither does it explicitly contain the 'actual physical control' requirement, both having been incorporated by judicial interpretation which the legislature has implicitly approved through decades of inaction. The dissent also distinguished the cases cited by the majority, Valentine and Williams, arguing they do not support the removal of the highway requirement. Justice McClanahan concluded that the majority's departure from such long-standing precedent violates the doctrine of stare decisis and lacks special justification.
Analysis:
This case significantly broadens the scope of Virginia's DUI statute (Code § 18.2-266) by explicitly eliminating the 'on a highway' requirement for motor vehicles, thus expanding potential liability to private property. It clarifies and reinforces the 'actual physical control' standard, providing a clear framework for what constitutes 'operation' without actual driving. The ruling also offers an important lesson on statutory interpretation and the concept of dicta, demonstrating how courts can refine previous statements deemed non-essential to a prior holding. Future cases will likely see increased prosecutions for individuals found intoxicated in vehicles on private property, such as driveways or private parking lots, even if the vehicle is not in motion.
