If a vehicle is moved by some power beyond the control of the driver, or by accident, it is not such an affirmative or positive action on the part of the driver as will constitute a driving of a vehicle within the meaning of Section 2 of Article 5, Chapter 129 of the 1951 Acts of the Legislature, as amended, Michie's 1955 W. Va. Code, 17C-5-2.
Defendant was found guilty of driving an automobile while under the influence of intoxicating liquor and of driving an automobile while under the influence of drugs and narcotics to a degree rendering him incapable of safely driving the automobile. He appealed, arguing that the trial court erred when it instructed the jury that the term "driving" had been defined and construed as requiring that a vehicle be in motion in order for the offense to be committed. On appeal, the court reversed the trial court's judgment, set aside the verdict, and awarded defendant a new trial.
Did the jury instruction that any accidental movement of the vehicle was sufficient to constitute a prejudicial error?
Citing § 2 of Article 5, Chapter 129 of the 1951 Acts of the Legislature, as amended, Michie's 1955 W. Va. Code, 17C-5-2, the court held that the mere motion of the vehicle did not constitute "driving" of the vehicle. Therefore, the trial court's instruction, which had the effect of telling the jury that any accidental movement of the vehicle was sufficient to constitute a driving of the vehicle, constituted prejudicial error. The court also found that the evidence in the case did not support a verdict of guilty on the charge relating to the driving of a vehicle by defendant while under the influence of drugs.