Can an intoxicated person be found guilty of DUI in Virginia when the only evidence of his operation of the vehicle is the mere fact that the key is in the ignition?

The Virginia Supreme Court not too long ago addressed when one could be convicted of DUI in Virginia when there is no evidence that the intoxicated criminal defendant found present in the vehicle actually drove the vehicle in Nelson v. Commonwealth, 281 Va. 212 (2011).  The upshot of that case was the establishment of the following rules:

(i) If the engine is running, then guilty of DUI.  See, e.g., Williams v. City of Petersburg, 216 Va. 297 (1975);

(ii) If the engine is not running but the key is in the on/accessory position, then guilty of DUI.  See, e.g., Nelson v. Commonwealth, 281 Va. 212 (2011);

(iii) If the engine is not running and the key is in the off position, then not guilty of DUI. See, e.g., Stevenson v. City of Falls Church, 243 Va. 434 (1992).

Well, the Virginia Supreme Court recently reconsidered the rule established in Stevenson inEnriquez v. Commonwealth, Record No. 110818 (2012).  The court in that case basically held that the dissent in Stevenson had it right when it said:

“Ordinary experience tells us that one in a drunken stupor in the driver’s seat of a vehicle is likely to arouse abruptly, engage the motive power of the vehicle, and roar away imperiling the lives of innocent citizens.  This sequence of events easily can occur where, as here, a drunk is sitting behind the steering wheel of a motor vehicle alone, with the key already in the ignition.  From a mechanical standpoint, the vehicle is capable of being immediately placed in motion to become a menace to the public, and to its drunken operator.”

The court overturned the decision in Stevenson and established its new bright line rule:

“[W]e establish 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 § 18.2-266.”

As such, it no longer makes a difference whether the key is in the on/accessory position, as in Nelson, or in the off position, as in Stevenson.  It only matters whether the key is in the ignition itself.  So the key is the key to the DUI . . .