Can I be Found Guilty of Virginia DUI if I Wasn't Driving?

Unfortunately yes.

Virginia law prohibits driving or operating a motor vehicle, engine or train while you’re intoxicated or under the influence of any drugs, alcohol or other substances. But what does that exactly cover?

As I discussed in other articles and videos about operating a vehicle, the “operation” word is quite broad under Virginia law. Driving is obvious. You have to actually drive the vehicle or at least in some manner be considered go drive it as far as the dictionary would define, but operating the vehicle is quite a different story.

In a case where the police come to your house and you’re not in a vehicle at all, but you tell them that you did drive the vehicle: what’s going to happen? Could you be found guilty of DUI in that scenario? Technically you can, because you admitted to driving the vehicle. That’s a case where the drive definition actually fits because you confessed to driving.

But what about the case where you’re sleeping one off in the parking lot behind the wheel of the car? You’re obviously not driving the car, but you’re sitting behind the wheel trying to sober up before you head home. Is that a Virginia DUI?

It can be. It’s going to depend upon the facts of the case, and in particular it will depend upon the nature of the parking. There are lots of little pieces to analyze in a case like that, but if you are behind the wheel in Virginia on a public roadway, you are considered to be operating the vehicle. The logic is that at any moment you could be taking the vehicle down the roadway and endangering people.

But how does that apply to a parking lot? Isn’t a parking lot a private area? Unfortunately, in most cases a parking lot is actually public because it’s open to the public for access to businesses. Since it is considered open to the public by that nature then Virginia law classifies it as a public highway.

The huge exception to the “open to the public for vehicular travel” rule is if the parking lot area is restricted in some way, such as with a gate or a fence. Those are the obvious ones, or also if there’s simply signs saying No Trespassing, No Soliciting, Not Open to the Public, Private Property. Those kind of signs can restrict the access to the public. Businesses put up those signs so they can eject people from the property if they are being a nuisance or something, but those type of signs can be a huge win for a Virginia DUI case. Even if you are actually driving the vehicle, if it’s not a public highway, there are some really strong defenses to the case.

If you’re charged with DUI in Virginia and you’re trying to figure out if you can actually be found guilty, we need to talk. For every DUI, you should consult an attorney, but especially if you aren’t actually moving the car or you weren’t actually behind the wheel, we need to talk about your case.

Photo by: Peter E. Lee

Andrew Flusche

My name is Andrew Flusche. I am a traffic and misdemeanor defense lawyer in Virginia. I limit my practice to traffic tickets and misdemeanor defense, so I know the ins and outs of these offenses. I literally wrote the book on reckless driving in Virginia which you can get on Amazon here or download for free here. I opened my practice in 2008 after earning my Juris Doctor degree from the University of Virginia School of Law. Since then, I have earned over 600 5-star reviews from happy clients on Google, Yelp, and Facebook. If you’ve been charged with a misdemeanor offense in Virginia, please don’t hesitate to contact me. Your initial consultation is always free, and you'll talk directly with me about the details of your case.

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