To be convicted of a DUI in the Commonwealth of Virginia, you are not required to be driving at the time you encounter law enforcement. The definition of what it means to be operating a motor vehicle for purposes of the DUI statute 18.2-266 is defined not by common sense but by statutory construction in case law. It may be necessary for a person to consult with a Virginia DUI lawyer, to understand if their actions constituted operating a vehicle or not. There have been a wide variety of cases in which someone was not actually driving the car at the time of their encounter with law enforcement, but they were still properly convicted of a DUI.
Driving in Virginia does not mean being behind the wheel and immediately out on a public highway. Driving actually has a much broader definition, though it does include the operation of a motor vehicle. The operation of a motor vehicle is deemed to be whenever someone is in physical control of the motor vehicle, whether or not the engine is running or the key is in the ignition. Furthermore, it may not be necessary to prove whether or not the vehicle is in drive or presently able to be operated, for example, if the car has gas and the battery works, in order to prove an individual was operating a motor vehicle in the Commonwealth of Virginia.
The prosecution must prove operation of the vehicle, not driving the vehicle. DUIs are often contested in cases in which the accused was sleeping in their car, or similar incidents. However, the current status of the law in Virginia after the Benitez and Sarafin cases is not favorable for those charged with DUIs in operation cases.
In Virginia, an individual can be arrested for driving on a highway of the Commonwealth, on private property, or on a non-road such as a parking lot. While DUIs that occur on private property or parking lots may be subject to certain limitations in their prosecution, they can still be prosecuted even if it is not on a highway of the Commonwealth. In fact, someone does not even have to be driving or operating a vehicle at the time when they encounter law enforcement. If law enforcement can prove that the individual operated that vehicle within three hours of the arrest.
These charges where the individual is not actually found to be in operation of a motor vehicle at the time of their encounter with law enforcement are most commonly charged in accident cases, or cases in which the vehicle’s operator is sleeping in the car.
Law enforcement officers can and do patrol local roadsides, bar parking lots, mall parking lots, and more. The first reason they do this is as the community caretaker role of law enforcement officers, to make sure that no one is in need of medical assistance, being assaulted, or hurt in any way.
At the same time, law enforcement is looking for people who are intoxicated to the point that they may be deciding not to drive. As a result, they often encounter people who are sleeping in their car.
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