Virginia DUI: Parking While Intoxicated . . . A Reminder

We will keep this one short, too, because we addressed the issue of being caught drunk in your car with only the key in the ignition only one year ago. Can you be convicted of DUI in Virginia if you were only found asleep in your car parked in your private driveway with the radio turned on and the key in the auxiliary position?  Yes, you can.

In Sarafin v. Commonwealth, Record No. 1753-12-2 (Va. Ct. App. 2013), the defendant tried to wiggle out of this fact pattern by claiming that he wasn’t really operating his car and that he certainly wasn’t operating it on a public highway.  Well, there are various problems with his arguments.  Let’s look to the code:

           “It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, . . .  For the purposes of this article, the term “motor vehicle” includes mopeds, while operated on the public highways of this Commonwealth.”

 As you can see, the defendant’s first problem is that the limitation on prosecution for operating a motor vehicle while under the influence is limited to moped use.  As such, this code section is entirely silent on where the offense can occur when using any other motor vehicle, which silence is notably different from other similar code sections under Title 18.1 that actually do specify where the offense can occur (e.g., on a public highway).  In addition, the definition of “operate” under this code section had previously been held to include placing the key in the ignition simply because, inter alia, the vehicle is capable of easily being placed in motion from that state.  Given this background, the defendant had limited chance of winning on appeal and his reliance on dicta in the case of Enriquez v. Commonwealth is not well placed.