Can I Get a DUI Even if I Wasn't Driving?

Contrary to what many people think, a person does not always need to actually be driving a vehicle to be convicted of a DUI. Virginia law allows for a conviction where the defendant was merely "operating" the vehicle, and Virginia law provides a very expansive definition of operation, designed to encompass many types of behavior that will qualify as "operation". There are many reasons why a person may be sitting in their car without intending to drive. However, if the police show up and suspect the individual may be impaired, the individual could be arrested for a DUI.

It may seem obvious that you should not be convicted of “driving” under the influence if you were not driving. There are many nuances with respect to this issue in Virginia DUI law. In many cases, you will need a strong defense and experienced Virginia DUI defense lawyer to fight criminal DUI charges. If you were arrested for a DUI and were not driving at the time, talk to a Virginia DUI defense attorney about your rights.

“Operating a Vehicle” in Virginia

Under Virginia Code § 18.2-266, it is unlawful for any person to “drive or operate” any motor vehicle while under the influence of alcohol or drugs. However, to “drive” or “operate” extends beyond the normal meaning of driving or operating a car.

In Virginia, a “driver” or “operator” is a person who “drives or is in physical control of a motor vehicle.” All that may be required for the police to arrest someone for a DUI is for the driver to be in the vehicle with a key in the ignition.

“When an intoxicated person is seated behind the steering wheel of a motor vehicle on a public highway and the key is in the ignition switch, he is in actual control of the vehicle, and therefore, is guilty of operating the vehicle while under the influence of alcohol within the meaning of Code § 18.2-266.” (Commonwealth v. Enriquez, 283 Va. 511 (2012)).

The Virginia Court of Appeals also found that the vehicle need not be on a public highway for someone to be arrested for a DUI. A driver sitting in a parked car in their own driveway with the key in the ignition can still be guilty of a DUI in Virginia.

What if I have a push-start button on my vehicle?

Many newer vehicles come with a push-button start that does not require the driver to put a key in the ignition. Generally, the driver has to have a key or key fob within a certain proximity of the vehicle. Although at the time of the writing of this page, appellate courts have not yet ruled on this issue in Virginia, it is possible that a driver of a vehicle with a push-button starter may be considered to be in control of the vehicle while sitting in the driver's seat with the key in their pocket.

No Intention of Driving Is Not a Defense

There may be a number of reasons why an impaired driver would be behind the wheel of a vehicle without intending to drive. The driver may intentionally choose not to drive because they had too much to drink. Instead, they may get in the car to sleep it off until they are sober enough to drive home.

A driver may get in the car, or even start the car, without planning on driving. The following are plausible explanations for getting in a car without planning on driving.

  • Staying in the safety of a locked vehicle.
  • Turning on the heat on a cold night.
  • Listening to the radio or checking the clock to know what time it is.
  • Charging a phone to use to call a taxi or get a ride from someone else.
  • Rolling down power windows.

However, when the police see someone sleeping in a car with the key in the ignition, they may immediately suspect the driver is intoxicated. The police may knock on the window, claiming to do a “wellness check,” and when the driver opens the door or rolls down the window, the police may claim to smell alcohol and arrest the driver even though the vehicle was stationary.

Police Looking for Drivers in Parked Cars

In places like Charlottesville and other town and cities across Virginia, the police often patrol parking lots and street parking areas late at night, looking for drivers asleep in their vehicles. It is common for a driver to drink too much then decide not to drive. However, they may not have any other way to get home other than waiting until they are sober enough to drive. This may be the responsible thing to do, but the police may still try and “bust” someone for sitting in the driver's seat while being impaired.

Charlottesville DUI Defense Attorney

Sitting behind the steering wheel of a car while impaired may be enough to get arrested for a DUI in Virginia. However, even if you were arrested for a DUI, it does not mean you are guilty of a crime. Talk to an experienced Charlottesville DUI defense attorney about your case and how to fight Virginia DUI charges and keep your record clear. Contact me today for a free consultation.

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Focused on Criminal and Traffic defense in Charlottesville and the surrounding area, including Albemarle, Orange, Greene, Louisa, Madison, Buckingham, Goochland, Nelson, and Augusta Counties.

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