Can I be charged with DUI in Virginia when I’m just sleeping in a parked car?

Ask the Arlington and Fairfax DUI Attorneys

Question:  I was parked at a public parking lot and the cop took me out and I was charged with a second DUI.  Is there a chance to win this case?  I had a first DUI over 6 years ago.  I was parked at a public parking lot.  It was cold, so I had the car on to use the heater. I had called my mother but the police didn’t ask and told me to step out of the car.

Answer:  There are special rules related to DUI charges for one seized on private property.  In some instances, the “implied consent law,” which makes submission to a breath test mandatory, becomes inapplicable.  This makes winning a DUI case much, much easier.

Regarding the parked car, it sounds weird to be accused of DUI when one was not driving.  However, in Virginia, the crime of DUI does not require “driving,” it merely requires that one “operate” the car.  “Operation” has been defined down to mean “having the key in the ignition.”  People do get convicted for DUI while sleeping in parked cars for this reason.  However, it does raise mitigating circumstances that many prosecutors find persuasive.

Regarding the second offense allegations, this affects only the punishment.  In Virginia, when one is convicted of a second offense within five to ten years of a first, there is a mandatory minimum jail sentence of 10 days.  (Had the prior offense occurred within five years, the mandatory minimum jail sentence rises to 20 days).  In addition, if one’s blood alcohol level was tested to be over 0.15, there are additional mandatory minimum jail sentences that would be applicable.  These all stack.  So, if one is convicted of a second offense within five years and had a breath test score of 0.15, his mandatory minimum sentence would be 30 days in jail – 20 days for the second offense within five years and 10 days for the high breath scores on a second offense.