In Virginia, it is possible to be arrested for a DUI and not have been driving the vehicle at the time of the arrest. As long as there was the possibility of being able to operate the vehicle, an officer can place you under arrest on suspicion of driving under the influence. If you were arrested on suspicion of a DUI, contacting a Virginia DUI attorney should be your next step. They will review the facts of the case and be able to construct the appropriate defense strategy.
Although DUI means “Driving Under the Influence” or “Driving While Intoxicated,” the keyword is not driving but rather operating. The DUI statute has a very specific definition for what the term operating means for purposes of the statute.
For example, an individual does not need to be behind the wheel and driving a car down the highway to be charged with a DUI. An individual may be charged with a DUI in the Commonwealth of Virginia—and ultimately convicted of the offense—even if that person is simply sitting in the driver’s seat with the key in the ignition. This can happen even if the vehicle is not on and no part of the motor is running. It is possible for an individual to be convicted of a DUI in Virginia simply for having a key in the ignition.
It is not necessarily moving the vehicle on the highway, but operating. Operating may be having the key in the ignition of the vehicle, even if the vehicle is not turned on and if that car is not on the highway. For example, being asleep behind the wheel with the key in the ignition in a parking lot may be considered “operation” for the purposes of a DUI.
In the context of a Virginia DUI, driving means operating. Operating is a defined term and an individual can look at the definitions provided in 46.2 – 100 and the relevant case law. The Virginia Supreme Court and the Virginia Court of Appeals have broadly defined the term driving and the term operating in recent years. There are a number of very important and very controversial Virginia appellate opinions that define driving. Most common of these are the Enriquez and Sarafin decisions. Both of these cases involved drivers who were ultimately convicted of a DUI, even though the vehicle was not driving down the road at the time of the offense. In both cases, the key was simply in the ignition. Even if the key is in the auxiliary position on private property, it is still possible that a person can be found guilty of a DUI in the Commonwealth of Virginia.
An individual can be arrested and ultimately convicted of a DUI even if that person is not driving on a highway in the commonwealth of Virginia. DUI offenses in Virginia can occur on private property or in a parking lot. Just like “driving” is a broadly defined term that includes operating under circumstances that do not necessarily show intent to operate a motor vehicle, the term “highway” in the commonwealth is also a broad term.
Highways of the Commonwealth may include parking lots in certain circumstances. Whether or not a person was operating on a highway is important to consider in a case. Although an individual can be convicted of a DUI on private property, there are certain implications that are involved in the Virginia appellate statute and an individual will want to talk to their VA DUI attorney about that. If a person is charged with a Virginia DUI on a private property, parking lot, or any non-traditional “highway setting,” be sure to bring that to the attention of the attorney during the consultation.
It is not uncommon for law enforcement officers to come upon on someone sleeping on the side of the road in a vehicle, sleeping in a parking lot, or otherwise not driving on a highway of the commonwealth and charge them with a DUI offense. It is common for them to be convicted of a Virginia DUI offense, even though they are not driving in the traditional sense. Although some of the examples are hypothetical, they are very much real world examples.
Law enforcement officers very often patrol near places where alcohol is consumed including bars, restaurant, or public events that involve consumption of alcohol—such as concerts or summer festivals. While officers may not actively do DUI patrols on people parked in their cars, they may have safety plans or other concerns that individuals may be under the influence. They are bound by their law enforcement duties to check on their well-being. It often turns into a DUI stop and DUI prosecution, depending on the facts of the case.
When officers investigate a DUI, they need to determine who the driver of the vehicle was during the alleged time that the violation was committed. If it is unclear because the driver was outside the vehicle or for a variety of other reasons, an officer may charge an incorrect driver. If the officer believes that they saw one person driving and then they switched, the officer may have difficulty charging the correct driver. The Commonwealth must prove the driving similar to all other elements and that must be beyond a reasonable doubt.
There are several significant Virginia cases in which multiple occupants of a vehicle were charged with DUIs while driving at the traffic stop. This is a specific example involving cases where drivers may switch places to try to avoid prosecution. If that happens, there may be some unique defenses that may arise because the operation of the motor vehicle is what the commonwealth must prove beyond a reasonable doubt. In cases where someone is asleep behind the wheel of the car, sleeping while parked in a parking space, or otherwise not traditionally driving down the highway, the operational element is often contested.
Patrick Woolley Attorney At Law