                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Lemons and Frank
Argued at Chesapeake, Virginia


KENNETH ALEXANDER REYNOLDS
                                                 OPINION BY
v.   Record No. 0549-99-1                   JUDGE ROBERT P. FRANK
                                              FEBRUARY 29, 2000
CITY OF VIRGINIA BEACH


         FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                      Thomas S. Shadrick, Judge

             Andrew G. Wiggin (Donald E. Lee, Jr. and
             Associates, on brief), for appellant.

             Teresa N. McCrimmon (Leslie L. Lilley, City
             Attorney; Kathy Dillon Rountree, Assistant
             City Attorney, on brief), for appellee.


     Kenneth Reynolds (appellant) was convicted of driving a

motor vehicle while under the influence of alcohol in violation

of Virginia Beach Code § 21-336.     On appeal, appellant contends

that in order to be found guilty under Virginia Beach Code

§ 21-336, he must have driven or operated the vehicle on a

highway. 1   We disagree and affirm the conviction.

     The Code of Virginia, § 18.2-266 reads in pertinent part,

                  It shall be unlawful for any person to
             drive or operate any motor vehicle, engine
             or train [while under the influence] to a
             degree which impairs his ability to drive or
             operate any motor vehicle, engine or train
             safely . . . .


     1
       At trial, appellant's counsel admitted appellant was
operating the vehicle.
                  For the purposes of this section, the
             term "motor vehicle" includes mopeds, while
             operated on the public highways of this
             Commonwealth.

        Additionally, the Code of the City of Virginia Beach

§ 21-336 states:

                  (a) No person shall drive or operate in
             the city any automobile or other motor
             vehicle, engine or train [while under the
             influence] to a degree which impairs his
             ability to drive or operate any motor
             vehicle, engine or train safely . . . .

                   (b) For the purposes of this section,
             the term "motor vehicle" includes mopeds
             while operated on the public highways of the
             city.

        The issue raised by appellant was resolved as early as

1961.    The Virginia Supreme Court, in Valentine v. Brunswick

County, 202 Va. 696, 698-99, 119 S.E.2d 486, 487-88 (1961), made

the following observation,

                  [i]t has been generally held that an
             ordinance or statute which provides that no
             person shall drive or operate a motor
             vehicle while under the influence of
             intoxicants, and is silent as to the place
             where the offense may be committed, does not
             require as an element of the offense that
             the driving or operating shall be on a
             public highway . . . .

                  The county ordinance is clear,
             unambiguous and means what it says. It
             applies to anyone driving or operating a
             motor vehicle, engine or train while under
             the influence of intoxicants anywhere in the
             county of Brunswick, whether on a public
             highway or private property. It does not
             specify that such driving or operating must
             occur on a highway.


                                 - 2 -
     In support of his argument that the offense must occur on a

highway, appellant cites Stevenson v. City of Falls Church, 243

Va. 434, 416 S.E.2d 435 (1992), Lyons v. City of Petersburg, 221

Va. 10, 266 S.E.2d 880 (1980), and Gallagher v. Commonwealth,

205 Va. 666, 139 S.E.2d 37 (1964).       However, our review of these

cases found no support for appellant's position as they discuss

the requirement that the person charged with the offense be the

"operator" of the vehicle.

     These cases refer to Code § 46.2-100 which defines operator

as one "who . . . (i) drives or is in actual physical control of

a motor vehicle on a highway . . . ."      However, the definitions

in Code § 46.2-100 are expressly applicable only to Title 46.2

and do not control Title 18.2.     See Code § 46.2-100.    Valentine

specifically states that an ordinance regulating driving while

under the influence "is not a highway regulation and cannot be

construed as part of the general codification of the State motor

vehicle laws."   Valentine, 202 Va. at 698, 119 S.E.2d at 487.

Therefore, the definition of operator pursuant to Code

§ 46.2-100 is inapplicable to this case.

     Section 21-336 of the Code of the City of Virginia Beach,

like the ordinance in Valentine, is silent as to the place where

the offense may be committed except in the case of mopeds.

     Appellant was behind the wheel of an automobile, not on a

moped.   Like the Valentine ordinance, the Code of the City of

Virginia Beach "is clear, unambiguous and means what it says."

                                 - 3 -
It makes unlawful any operation of an automobile anywhere in the

City of Virginia Beach by anyone under the influence of

intoxicants.   Appellant admitted he was operating his vehicle in

a ditch located in the City of Virginia Beach while under the

influence of alcohol.   Nothing in the City ordinance exempts

appellant's conduct.    The City ordinance prohibits and

criminalizes appellant's admitted actions because the actions

occurred in the City of Virginia Beach.   The fact that appellant

operated the vehicle while trying to extricate it from a ditch,

off the traveled portion of the public highway, is of no

importance.

     For these reasons, we affirm the judgment of the trial

court.

                                                           Affirmed.




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