The Fairfax County Circuit Court recently faced the latest variant on parking under the influence: can an intoxicated person be found guilty of DUI in Virginia when the only evidence of his operation of his keyless ignition vehicle is the fact that the interior electrical accessories were on and the key FOB in his hand?
In Commonwealth v. Lopez, Case No. MI-2014-1256, the court found a defendant in this position guilty of DUI. It found that pressing the key FOB once activated the car’s interior electrical accessories (much like turning a key in the ignition to the auxiliary position), while pressing the key FOB twice would start the car’s ignition system (much like turning a key in the ignition to the right). Given that having the key in the auxiliary position was sufficient to constitute “operation” of a motor vehicle in Sarafin v. Commonwealth, 748 S.E.2d 641 (Va. Ct. App. 2013), let alone the fact that simply having the key in the ignition slot was sufficient to constitute “operation” of a motor vehicle in Enriquez v. Commonwealth, 283 Va. 511 (2012), the court had little trouble finding that the defendant was also operating his motor vehicle in this case despite the lack of a traditional key ignition system.
While this answer is unsurprising, it still leads to numerous other more interesting questions regarding intoxicated persons found behind the wheel of a motor vehicle. As I asked three years ago on this blog, what if the person never activated anything using the key FOB? What if the person simply had the key FOB in his hands when he was found but had not yet pushed any buttons? What if the key FOB was not in his hands but was within his reach? What if the key FOB was outside his immediate reach but still within the car’s cabin?
A driver would then have to press the brake pedal and the ignition switch to actually start the car.