Do you remember the recent case of Sarafin v. Commonwealth? Do you remember that this case was the latest example of our dear courts finding someone guilty of driving while intoxicated while merely sitting in his car with the radio turned on and the key in the auxiliary position? Do you remember how I gave the defendant no chance at success given the latest appellate court decisions on the subject? Well, Mr. Sarafin appealed . . . and he almost won. But, ultimately, he lost and little has changed since we last went over this topic.
In this case, the Virginia Supreme Court wrestled with interpreting the following relevant parts of the Virginia Code:
“It shall be unlawful for any person to drive or operate any motor vehicle, engine or train . . . while such person is under the influence of alcohol . . . For the purposes of this article, the term “motor vehicle” includes mopeds, while operated on the public highways of the Commonwealth.” Va. Code § 18.2-266
“[An operator is] every person who . . . drives or is in actual physical control of a motor vehicle on a highway . . .” Va. Code § 46.2-100
The defendant argued that there are two distinct bodies of law embodied in this section. The first is the crime of driving a motor vehicle under the influence of alcohol, which is something the defendant effectively concedes can occur on private property. The second is the crime of operating a motor vehicle under the influence of alcohol, which is something that he contends can only occur on the public highways of the Commonwealth. Why does he think this?
Well, first of all, he notes that the definition of “operator” elsewhere in the code means “every person who . . . drives or is in actual physical control of a motor vehicle on a highway . . .” Va. Code § 46.2-100. Second of all, he notes that a number of old cases imported this definition into the word “operate” under the DUI statute, whether the new one (§18.2-266) or the old one (18.1-54). Indeed, as the dissent notes, the court’s past decisions really went out of the way to graft this public highway limitation onto only the “operate” element of the DUI statute, while leaving the alternative “driving” element alone. In fairness though, the court had never explicitly addressed the situation before it in Sarafin, i.e., one where someone merely operated a motor vehicle under the influence of alcohol on private property. As such, this truly was a case of first impression before the court.
Given all of this, the court leaves us with three separate opinions, each of which effectively wrangles with the interplay between its past case law, canons of statutory construction, and legislative intent. In the end, a majority of the court holds that the defendant was guilty of operating a motor vehicle under the influence of alcohol, regardless of the fact that it occurred on his own private property. Indeed, a majority of the court did not buy the argument above because, inter alia, if the legislature intended to limit the scope of “operate” to public highways, it could have easily done so as indicated by the legislature having done exactly that when it comes to mopeds. As such, our dear drunk defendant was found guilty in the end.
 Title 18.2 is entitled: “CRIMES AND OFFENSES GENERALLY”
 Title 46.2 is entitled: “MOTOR VEHICLES”