Using the “No-Driving Defense” in DUI Cases

no driving defense dui-Driving under the influence or DUI is a misnomer in Virginia because the law does not require individuals to be driving to be convicted.

Virginia law permits convictions for DUI in cases where the accused was “operating” a vehicle even if the car was parked and not moving. As such, the no-driving defense in DUI cases is rarely viable on its own.

Although Virginia provides a broad definition of what constitutes operating a vehicle, an experienced criminal defense attorney can help those charged with DUI present a compelling and legally sound defense to these serious charges.

DUI Laws in Virginia

Virginia uses the terms driving under the influence and driving while intoxicated interchangeably.

Under the Code of Virginia Section 18.2-266, law enforcement can charge a person with DUI if they were driving or operating a motor vehicle while under the influence or with a blood alcohol concentration (BAC) of 0.08% or higher. The Commonwealth considers a person intoxicated per se if they meet this legal threshold based on their blood or breath tests.

The law considers a person intoxicated per se when the person meets any of the following criteria:

  • BAC of 0.08 grams per 100mL (.08%) of blood;
  • BAC of 0.02 grams per 100 mL (.02%) of blood and is under 21 years old;
  • Blood concentration of .1 milligrams per liter or more of methamphetamine;
  • Blood concentration of .02 milligrams per liter or more of cocaine; or
  • Blood concentration of .02 milligrams per liter or more of phencyclidine (PCP).

If you do not meet these standards, you might still be charged if the government can establish that your ability to drive safely was impaired.

Can You Get a DUI If You Are Not Driving?

A person can be convicted of a Virginia DUI even if the car never moved. Virginia Code § 18.2-266 explains that it is unlawful for a person to drive or operate a motor vehicle while under the influence of alcohol or drugs.

Under Virginia Code § 46.2-100, an operator means a person who either (i) drives or is in actual physical control of a motor vehicle on a highway or (ii) is exercising control over or steering a vehicle being towed by a motor vehicle.

Critically, Virginia’s Crime Code does not define actual control. However, the Virginia Supreme Court held that when an intoxicated person is behind the steering wheel of a motor vehicle, and the key is in the ignition, they are in actual control of the vehicle.

This would make them an operator for the purposes of a DUI charge, even if the engine was not turned on and the car was stationary. It is important to note that cases involving drivers with push-start vehicles will likely face the same standard.

Can You Get a DUI Without Being Pulled Over?

In Virginia, you can get a DUI without being pulled over. However, the extent of what a police officer can do depends on the unique facts and circumstances of the case.

Fundamentally, police need reasonable suspicion of criminal activity to stop you, and they need probable cause that you committed a crime before they can arrest you for DUI. However, certain exceptions exist when a police officer acts as a community caretaker.

For instance, a Virginia police officer who sees you sleeping behind the wheel of the car can tap on the window to determine if you are experiencing a medical emergency.

If you exhibit signs of impairment or fail to wake up, the officer may have reasonable suspicion that a crime has or will take place—in this case, DUI. This standard relies heavily on the officer’s judgment.

However, the suspicion must be based on sound judgment. If the officer wants to arrest you, they must demonstrate concrete, objective evidence that you were impaired. For example, the officer might meet this standard if you fail a field sobriety test and exhibit slurred speech.

Can You Get a DUI Without The Car On?

Everyone knows that you can’t drive drunk. If you’ve had too much too drink (or you’re even borderline), you should find another way home. But did you know that you can be convicted ofVirginia DUIwithout even having your car ON?

Yep. And it’s a fairly radical change in the law.

Virginia law has long prohibited “operating” an engine under the influence of drugs or alcohol. The basic rule (as I understand it) used to be that a vehicle ignition had to be turned at least one click, so the defendant was operating the electrical system of the car.

But the Virginia Supreme Courtjust ruledthat “operating” a vehicle includes sitting behind the wheel with the keys in the ignition. Period. Now it doesn’t matter if the ignition is turned at all.

Scarily, the rule is even broader than that. The Court ruled that “any individual who is in actual physical control of a vehicle is an ‘operator.’”

What about someone who’s nowhere near the vehicle but has a remote starter? He can “operate” his car anytime he’s within range of the starter.

How about keyless ignitions? Some folks will come out of a bar after having too many and hop into the driver’s seat to WAIT for a cab or friend to pick them up. If their keys are in their pocket, they have physical control of the car even though they are making the safe and responsible choice.

How Can Police Prove You Were Driving?

Virginia’s expansive definition of operating a vehicle provides law enforcement with many ways to prove that a person behind the steering wheel can be held accountable for DUI, even in a parked car.

Law enforcement will attempt to demonstrate at least one of the following:

  • You recently drove the car before pulling over,
  • You had physical control of the vehicle, or
  • You had the intent to drive while impaired.

Evidence that suggests that the driver was operating the vehicle under Virginia law includes the following:

  • Location of the keys,
  • Where the driver is seated or resting, and
  • The warmth of the car.

The officer will assess all of these factors and make a decision as to whether you were operating the vehicle for the purpose of charging you with a DUI.

No-Driving Defense in Virginia

We have already established that not driving is not necessarily a defense in Virginia DUI cases. However, a DUI attorney can plan a compelling defense to convince a judge or jury that you had a plausible reason to be in the car without intending to drive.

In addition, other defenses to Virginia DUI cases include arguing the following:

  • Unlawful traffic stop;
  • Illegal search or seizure;
  • Improper sobriety tests; and
  • Inaccurate blood or breath tests.

A successful defense can lead to charges being dropped, reduced, or dismissed.

[VIDEO] Yes! You Can be Charged With VA DUI in Your Garage!

Are You Facing Virginia DUI Charges?

If you’ve recently been charged with a Virginia DUI offense, an experienced criminal defense attorney can make the difference in your case.

At Flusche & Fitzgerald, our criminal defense lawyers have extensive experience helping good people who find themselves in bad situations. We command an in-depth understanding of the best DUI defenses, when they apply, and how to effectively use them to ensure your case ends in the best result possible.

To schedule a free consultation, call Flusche & Fitzgerald at 540-318-5824. You can also reach us through our secure online contact form.

Ryan Fitzgerald

I'm Ryan Fitzgerald; everyone calls me Fitz. I partnered with Andrew to form a focused defense team that is devoted to your needs. I have over 12 years of experience as a former prosecutor, so I know what the Commonwealth wants to see for negotiations and how to find the weak spots in their case. My experience ranges from reviewing all incoming DWIs to prepare other prosecutors for court, to training officers how to build their DWI cases, to successfully prosecuting a thirty-year cold case homicide. Your initial consultation with me is free; you'll talk directly with me about your case and how we can leverage my experience and connections to obtain the best possible result.

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