In Virginia, the code section that is used for a DUI charge is section 18.2-266 which begins with ‘It shall be unlawful for any person to drive or operate any motor vehicle…’
There are the obvious cases where the car is in motion and the driver has been stopped by a law enforcement officer. But what about the times when the car is not moving?
For example, there have been previous cases where the engine was running but the transmission was in ‘Park’, where the key was in the ‘on’ position but the engine was not running, or where the key was in the ‘accessory’ position and the radio was playing, etc.
Many times, a person is charged with DUI when he/she is found asleep in the car, sitting in the driver’s seat, with the key in the ignition, sometimes with the engine turned off and the question has been whether or not they were considered to be ‘operating’ the vehicle.
On March 2, 2012, The Virginia Supreme Court issued an opinion in the case of Jean Paul Enriquez v. Commonwealth of Virginia that has established the rule that ‘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 physical control of the vehicle and, therefore, is guilty of operating the vehicle while under the influence of alcohol within the meaning of code section 18.2-266.’
Obviously, the best solution is to not drive if you have been drinking at all.
It is safer for everyone if you get a cab home and come back tomorrow to get your car.
But, if you feel that you need to stay with your car, don’t sit in the driver’s seat and don’t put the key in the ignition or you might be found guilty of a DUI, even if the car is not in motion.
If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.
