Virginia’s DWI/DUI laws not only prohibit driving while under the influence or while intoxicated but “operating” a motor vehicle (Va. Code §18.2-266). Webster’s dictionary defines “drive” as “to operate the mechanism and controls and direct the course of a vehicle.” However, the Commonwealth does not need to prove that a person was driving a vehicle in order for the person to be convicted of a DUI. Virginia’s Supreme Court has defined “operating” as “engaging the machinery of the vehicle which alone, or in sequence, will activate the motive power of the vehicle” (Nelson v. Commonwealth, 281 Va. 221 (2011)). This means that a person can be found to have been “operating” a motor vehicle while merely sitting in a vehicle’s driver’s seat with the key in the car’s ignition.
If you have any questions regarding operating the vehicle in McLean DUI cases, call an experienced DUI lawyer today.
Operating a Vehicle
Virginia Code §46.2-100 defines “operator” or “driver” as every person who either:
- Drives or is in actual physical control of a motor vehicle on a highway, or
- Is exercising control over or steering a vehicle being towed by a motor vehicle
This means that if the officer at any point observed the person in the passenger’s seat while the said person was in the driver’s seat of the vehicle, this can be sufficient to charge that person with a DUI. However, these types of cases are harder to prove if the officer did not actually observe the passenger while they were sitting in the driver’s seat. An accomplished lawyer is knowledgeable about how to defend a charge if it is not clear who was operating the vehicle in a McLean DUI case.
What if it is Not Clear Who is Driving?
Theoretically, a person sitting in a passenger seat of a vehicle that was stopped could be charged with a DUI/DWI. It is rare, but it does happen occasionally. This scenario is often seen in situations in which an officer believed that the person in the driver’s seat and the person in the passenger’s seat switched places.
Getting a DUI in Places Other Than Public Roads
A person can be arrested for a DUI in places other than public roads. For example, if an officer observes a person to be “operating” a motor vehicle in a parking lot – this person can be arrested for a DUI. Even if a person is parked outside of a person’s home on a private roadway, the person can be arrested for a DUI. Similarly, a person who has arrived safely at home and pulled into the person’s driveway can be charged with a DUI.
How often do these kinds of DUI arrests occur in McLean?
These kinds of DUI arrests occur more often than one might think in Mclean. However, these cases can be more difficult for the Commonwealth to win. This is because an officer needs a reasonable articulable suspicion in order execute a traffic stop. This means that an officer cannot initiate a traffic stop merely because the officer feels like it or has a haunch that the officer may discover some infraction of the law if the officer looks hard enough. Where officers lack probable cause for the stop, DUI cases can frequently be won on motions to suppress on that basis. If the officer does not have probable cause for a stop, things the officer discovers afterward such as signs of intoxication become inadmissible as they are tainted by the bad stop.
Another tricky part about DUIs that occur in places other than public highways is the inapplicability of Virginia’s Implied Consent law (Va. Code §18.2-268.2). This statute states that any person who operates a motor vehicle on a highway in Virginia gives consent to have the person’s blood or breath testing.
Because of this, persons who are observed by officers in private parking lots or on other private property are not required to submit to blood or breath tests in the same way their counterparts are who are stopped on public highways. Many DUI cases rely heavily upon certificates of analysis, which are produced from such tests under the Implied Consent law.
Law Enforcement Patrols Parking Lots Near Bars and Restaurants
Law enforcement officers patrol parking lots and roads near bars and restaurants at night for potential DUI suspects. This is because these are locations in which officers frequently encounter persons who drive under the influence of alcohol. For example, an individual may stumble out of a bar and then hop in their car and put the key in the ignition. If an officer sees this, the officer can then execute a traffic stop for “operating” a motor vehicle while intoxicated. The person may then be asked to complete Standard Field Sobriety Tests after which the officer will make a determination about arresting the person.
Contesting Operating a Vehicle in a DUI Case
Due to the threshold for proving that a person was “driving” or “operating” a vehicle is not very high, this element is not as easy to contest as it was before the courts and statutes clarified what these terms meant. Virginia courts have held that even if a vehicle is not capable of traveling, a person can still be found guilty of a DUI.
However, one way this can be contested is if the key was not in the ignition when the officer observed the person in the vehicle. This is because absent observing the key in the ignition, an officer will likely be unable to prove that a person drove or operated the motor vehicle.
For more information about operating the vehicle in McLean DUI cases, consult with a lawyer today.
