DUI in Parked Car With Lights on, But No Ignition is Upheld

            In 2012, the Virginia courts upheld a DUI conviction when the defendant was found intoxicated in a parked vehicle with the keys in the ignition.  The Court found that “operate” as used in Va. Code §46.2-100 turns on “whether the vehicle is capable of being operated at the time that the driver is found.”  When a key is in the ignition, the car is deemed to be capable of being operated for purposes of a DUI.

            

            In 2014, the Virginia courts determined that a person who is asleep in a parked car in his own private driveway with the key turned slightly in the ignition only to activate the auxiliary power is also considered to be capable of operating a vehicle, which violates the DUI statute.  Even though the defendant was asleep in the car, he was still seated in a car, behind the steering wheel, with the keys in the ignition.  The defendant was deemed to be in “actual physical control” under Va. Code §18.2-266.  The position of the key in the ignition is not relevant when determining if a driver is in “actual physical control” of the vehicle.  The use of electrical equipment in the vehicle is enough for courts to determine that the defendant is operating a vehicle.  Use of auxiliary power proves “actual physical control” of a vehicle.

            

            Now, the Fairfax County Circuit Court just ruled that someone found asleep in a parked vehicle with lights illuminating the radio panel is deemed to be in “actual physical control” of the vehicle for purposes of a DUI.  The vehicle involved in this case has push button technology which means that auxiliary power can be activated with the touch of a button.  However, the car’s ignition can also be activated with the touch of a button.  Thus, the Court found that the push of button that activates the radio panel lights is akin to the slight turn of a key in an ignition that activates the auxiliary power.  Therefore, the defendant in this case by having radio panel lights illuminated is deemed to be in “actual physical control” of the vehicle for purposes of a DUI in Virginia. The Court’s opinion for this case can be found here.

If you or a family member has been charged with DUI in Virginia and would like a free legal consultation or if you would like more information on DUI or DWI please feel free to contact our office at (703) 916-1227 to schedule an appointment at our office in Fairfax or one of our many other offices located throughout Northern Virginia or visit us on the web at http://www.portnerandshure.com/Criminal-Defense/DWI-DUI/