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 mere fact that he is in the driver seat?

Va. Code § 18.2-266 makes it unlawful for any person to drive or operate any motor vehicle while under the influence of alcohol.  The Virginia Supreme Court provided its most recent interpretation of “to drive or operate” in Enriquez v. Commonwealth, Record No. 110818 (2012), where it held 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.”

 The court based its decision on the following logic:

 “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.”  Id.

The court did not bother addressing directly the logic it used in its past decisions where the focus was on whether the placement of the key in the ignition indicated an action taken in sequence up to the point of activation of the vehicle’s motive power.  See, e.g., Nelson v. Commonwealth, 281 Va. 212 (2011) (holding that the defendant is guilty if the engine is not running but the key is in the on/accessory position).  The court made no effort whatsoever to tether its decision to any ordinary interpretation of the phrase “to drive or operate.”  The court merely wanted a bright line rule to put these issues to rest.

Well, they failed.  They failed precisely because car manufacturers appear hell bent on eliminating the key as the means by which we start our cars.  Indeed, push button keyless ignitions are no longer just for luxury cars.  Ford has this feature in its entry level Fiesta.  Kia has it, too, in its entry level Forte.   As these ignition systems creep towards becoming the new norm, we are bound to see a case in which a barely drunk individual is found in the driver seat of his keyless ignition car.

So what will the court do then?  What will it do when an individual with a blood alcohol content of 0.10 is only found in the front seat of his warm car making a phone call in the dead of winter for the purpose of getting a cab?  Will it agree that there should be some meaningful distinction between the defendant in Enriquez, who actually made a small step towards activating the vehicle’s motive power by placing the key in the ignition, and the defendant in our hypothetical, who merely stepped inside his car to fetch his phone and make a phone call?  Or would it just state that these situations are essentially identical because the car in each was “capable of being immediately placed in motion to become a menace to the public,” with the defendant in our hypothetical even more of a menace because all he has to do is push a button while the defendant in Enriquez actually had to turn the key over?

We shall surely see . . .