Question: Can I be convicted of DUI in Virginia when I wasn’t driving (and wasn’t even intending to drive)? I was sitting in my parked car, with the engine off, to listen to my radio. I was in my own driveway, did not turn on the car at any time, and was sleeping? I was arrested in Fairfax for DUI. How is that “driving” under the influence of alcohol?!?!?!?! It is more “DUI sleeping in car!”
Answer: Virginia’s DUI law has expanded so much recently that one can actually be convicted of DUI if he is sitting in parked car, in his own driveway, with the car turned off, but with a key in the ignition. (Remarkably, Washington, D.C. is even more strict. In the District of Columbia, one can be convicted of DUI if he is nearby, but outside, his car with his keys in his pocket)! The public policy for these rules must be that those impaired by alcohol have their judgment so impaired that the government doesn’t even want them near cars. Don’t think this is really the case? Ask Justin Sarafin.
Police were called to Mr. Sarafin’s home on a noise complaint. They saw him parked in his driveway, with the car off, but with the radio on. (The key was turned backwards to access the auxiliary power). He was sleeping. When police woke him, he told them that he had been drinking but had left his home to sit in his car and listen to his radio. He did not intend to drive and wasn’t driving. He fell asleep.
The Supreme Court of Virginia affirmed his DUI conviction. First, it held that he was in “actual physical control” of the car — “operating.” The court reasoned that: “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. From a mechanical standpoint, the vehicle is capable of being immediately placed in motion to become a menace to the public, and to its drunken operator.”
Second, it held that he was one can be DUI anywhere — even on private property (such as a driveway). One need not be on a public road.
This was a close 4-3 decision. One of the dissenters noted: “The Court has taken the final step
toward construing Code § 18.2-266 to punish a person for merely occupying, rather than operating, a motor vehicle.” Nonetheless, the rule of law in Virginia is it is illegal to sit in your car while under the influence of alcohol if your key is in the ignition. Will it be long before it is illegal to stand outside your car with the key in your pocket if you are under the influence of alcohol? Ask D.C.?
The case is Sarafin v. Commonwealth, Record No. 131747 (October 31, 2014).