Virginia DUI: Parking While Intoxicated . . . The Last Word?

Do you remember the recent case of Sarafin v. Commonwealth?  Do you remember that this case was the latest example of our dear courts finding someone guilty of driving while intoxicated while merely sitting in his car with the radio turned on and the key in the auxiliary position?  Do you remember how I gave the defendant no chance at success given the latest appellate court decisions on the subject?  Well, Mr. Sarafin appealed . . . and he almost won.  But, ultimately, he lost and little has changed since we last went over this topic. Continue reading

Virginia DUI Law: But I Wasn’t Trying to Drive!

We will keep this one short.  Really short.  Must the prosecutor prove that you intended to operate your motor vehicle to convict you of DUI in Virginia?  Nope.

Virginia’s DUI statute was enacted to protect against “what could happen with an intoxicated individual behind the wheel, regardless of whether he intended to be there, turn on the car, or move the vehicle.”  Case v. Virginia, Record No. 2188-12-4 (Va. Ct. App. 2014).  Virginia’s DUI statute accordingly does not incorporate the typical mens rea requirement that the prosecutor must prove the defendant’s intent to commit the criminal act.  Id.  As such, it’s no defense to claim that you weren’t trying to drive.

Virginia DUI Law: The Private Parking Lot Loophole in Action

In Villareal v. Commonwealth, No. 0764-13-2 (2013), an off-duty police officer was hired to perform security outside of a restaurant that was part of an outdoor strip mall.  He unfortunately got to witness firsthand an intoxicated woman back her car right into his parked car in the mall’s parking lot.  He promptly arrested her and she was thereafter charged with driving under the influence (4th offense) and driving on a license suspended due to multiple prior convictions for driving under the influence.

The criminal defendant moved the trial court to dismiss her charge of driving on a suspended license under Va. Code § 46.2-391 on the ground that she was not seen driving on a “highway.”  The trial court overruled her motion and convicted her of driving on a suspended license.  She accordingly appealed. Continue reading

Virginia DUI: Refusing Field Sobriety Tests and Consciousness of Guilt

Can you refuse to take a field sobriety test in Virginia?  Can that refusal be used against you at trial for DUI in Virginia?

Well, the good news is that you can refuse to take any field sobriety test in Virginia.[1]  See, e.g., Jones v. Commonwealth, 279 Va. 52 (2010).  And, the other good news is that the court cannot use your refusal as evidence of your “consciousness of guilt.”  Id.  But, there’s some bad news. Continue reading

Virginia DUI: I Saw Him Speeding There

Can you be convicted of speeding on the basis of an officer’s estimation of your speed?

In Lewis v. Commonwealth of Virginia, Record No. 1195-12-1 (unpublished), an officer was running his radar gun from his moving police cruiser.  He clocked a driver going 56 mph in a 35 mph zone going the opposite direction.  He turned around, flashed his lights, and tracked down the driver who weaved ever so slightly within his driving lane but otherwise was not driving erratically.  The driver looked drunk, smelled of alcohol, admitted to having one beer and one shot, and failed five field sobriety tests.  The officer arrested him for speeding and driving under the influence of alcohol. Continue reading

PUI: Parking Under the Influence in Virginia

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). Continue reading