We commonly call the offense we defend “driving under the influence” or “driving while intoxicated.” But in Virginia, you don’t need to be driving to be convicted. Virginia criminalizes “operating” while impaired also:
“It shall be unlawful for any person to drive or operate any motor vehicle . . . .” Va. Code 18.2-266.
But what constitutes operation? If you start to feel the effects of alcohol can you pull to the side of the road and sleep it off? Can you run the heater if it is cold? At least play the radio?
In March of 2012, the Supreme Court of Virginia overturned 20 years of precedent and ruled that if you are seated in the driver’s seat and the key is in the ignition you are operating and in danger of getting a DUI. In Enriquez v. Commonwealth, the Supreme Court explained their reasoning:
“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.”
Previous decisions required the ignition to be in the “on” or “accessory” position. Now the law is clear: if you are going to pull over, make sure the key is out of the ignition.