A common question that comes up in Virginia regarding the DUI law, is what happens if someone is simply "sleeping it off" in their car. Can they be convicted for DUI under Virginia Code Section 18.2-266? Does the car have to be running? What if it is cold outside and the heat is on? What about the radio?
Section 18.2-266 states in part that :
"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..."
The Supreme Court of Virginia recently took up the issue as to what "operate" actually means. At the center of the case, is a question as to whether someone is operating a vehicle when their key is in the ignition and it has been turned to the point where the radio is operable, but the engine has not been started. Although there was a dissenting opinion, the Supreme Court of Virginia concluded that while the defendant's actions in turning the key to the "accessory" point did not alone activate the motor or "motive power", the action of turning the key from the off position, in and of itself was an action that began the sequence of activation. The Court concluded that this action made the defendant the "operator" of the vehicle within the meaning of Section 18.2-266. As result, despite the fact that the vehicle was not moving, and the engine was off, the defendant's conviction for "drunk driving" was upheld.
If you or someone you know has been charged with a driving under the influence or if you would like more information on driving under the influence please contact Portner & Shure. Our Virginia criminal defense lawyers are available to provide you with a free legal consultation.