No, you don’t have to be driving to be convicted of a DUI in Virginia.

In Sarafin v. Commonwealth, 288 Va. 320 (2014), the Virginia Supreme Court upheld a DUI conviction that will be surprising for most.  There, the defendant was found parked in his own driveway asleep, with his key in the ignition.  Though the key was in the auxiliary position, the car was not running. 

Upon waking him up, law enforcement recalled the defendant smelled of alcohol, had blood shot eyes, admitted to drinking beer at a pub, getting dinner at a different location, driving home and drinking more, then returning to his car to listen to the radio.  The defendant explicitly stated that he never intended to leave his driveway.  

So how is this DUI?  He wasn’t even Driving! 

You can be convicted simply by “operating” a car.  The court has defined operating as “engaging the machinery of the vehicle which alone, or in sequence, will activate the motive power of the vehicle.”   The court has further stated that, “when an intoxicated person is seated behind the steering wheel…and the key is in the ignition switch, he is in physical control of the vehicle and, therefore, is guilty of operating the vehicle while under the influence of alcohol…” 

But he was in his driveway?!

Yes, folks, you heard that right.  The defendant wasn’t on the street driving.  He was parked in his drive way with the stated intention of simply listening to the radio.   While not driving may affect whether certain evidence comes in at trial (including a BAC), you don’t have to be driving on the street to be convicted of DUI.

Conclusion.

Sarafin makes clear that Virginia DUI Law is pretty broad.  Therefore, when in doubt, get a cab.  

For more questions, call BenGlassLaw. 

James S. Abrenio
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Focusing on criminal, traffic defense and personal injury cases
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