There's a new Virginia DUI case out. Called Mathurin NGOMONDJAMIv. COMMONWEALTH of Virginia (glad I don't have to try to pronounce that name in court)! It is the classic story of DUI defendant fights system, comes up with some arguments that could be disguised as potentially fruitful, and then gets shot down by the court of appeals.

The underdog in the story, Ngomondjami, was not conscious. The vehicle was not running. He didn't even wake easily. But he could, and did, stil get a DUI in VA.

So viewed, the evidence proved that in the early morning hours of October 29, 2006, Corporal Arthur Tate of the Arlington County Police Department found appellant, unconscious, reclined in the driver's seat of a car with its engine running in a school parking lot. Appellant was its only occupant. After several attempts to get appellant's attention by knocking on the driver's door window, Tate opened the unlocked driver's door and woke him.

Corporal Tate determined that appellant had slurred speech, was unsteady on his feet, and had bloodshot eyes. He asked appellant if he would take field sobriety tests, and appellant agreed to do so. However, appellant laughed at Corporal Tate when he demonstrated the one-legged stand test, and refused to attempt it, stating he thought Tate wanted to make fun of him. Appellant also refused to attempt the heel-to-toe test and the alphabet test. Although he previously told Tate he had a degree in electrical engineering, appellant told Tate he had no education and therefore could not perform the alphabet test.

Appellant spoke in a soft voice but was belligerent, and repeatedly threatened Corporal Tate, stating he "prayed that [Tate's] wife and kids would die within three days...." After talking with appellant for approximately 15 minutes, Corporal Tate arrested him for DUI.

At trial, appellant testified he was sleeping in his car because he was in the process of divorcing his wife and that he was homeless. He denied being intoxicated.

 Not wanting to be found guilty of DUI, the defense proposed the following instruction, which the court refused to give to the jury:

The trial court declined to give appellant's proffered instruction, which provided that: "Operating a motor vehicle means starting the engine or manipulating the electrical or mechanical equipment of the vehicle without actually putting the vehicle in motion but with the purpose of putting it in motion." (Emphasis added). It granted the Commonwealth's jury instruction on that issue, which provided that: "Operating a motor vehicle not only includes the process of moving the vehicle from one place to another, but also includes starting the engine, or manipulating the mechanical or electrical equipment of the vehicle without actually putting the car in motion."

And here's what the appellate court had to say about the trial court's refusal of the defense instruction (no surprises here):

Consistent with prior decisions of this Court and the Supreme Court, it was not necessary that the jury find appellant acted "with the purpose of putting [a car] in motion" to find he "operated" a car within the meaning of Code § 18.2-266. See Stevenson, 243 Va. at 438, 416 S .E.2d at 438.

The instruction granted by the trial court fully and fairly covered the principles of law relevant to the question of whether appellant operated the car in which he was found, intoxicated and while the engine was running. We conclude the trial court did not err in refusing to grant appellant's proffered jury instruction. See Gaines, 39 Va.App. at 568, 574 S.E.2d at 778.

Guess what folks, here's another (not so) big surprise. The appeals court also shot down the defense argument about sufficiency of the evidence:

Appellant also contends the Commonwealth's evidence was insufficient as a matter of law to prove he "operat[ed] [the vehicle,] because there is no evidence that supports a reasonable inference that he had any purpose to put his vehicle in motion on a highway." We find appellant's argument to be without merit.

And just when the reader (the the edge of their seat, I'm sure) thinks that the appeals court is going to at least thrown the defendant in this case a bone... nope, not in this Virginia DUI case.

We conclude that the Code § 19.2-295.1 notice requirements do not apply to the admission of a defendant's prior traffic record into evidence pursuant to Code § 46.2-943. Accordingly, we conclude the trial court did not err by admitting appellant's DMV record into evidence.

Not a good defense ruling in sight.

For more information, see Virginia DUI Law.