Passenger Charged with Virginia DWI

A Roanoke woman was charged in Bedford County with reckless driving, DWI, and driving on a DWI-suspended license in relation to a one-vehicle accident that occurred in January. However, she wasn’t the driver. She was a passenger!

The accident occurred when the car ran off the highway and flipped. The defendant, who was sitting in the backseat, allegedly grabbed the steering wheel, which resulted in the crash. According to a passenger sitting in the front seat, she had attempted to grab the wheel several times before succeeding. One passenger was severely injured and is still recovering. Though police are still waiting toxicology reports, the woman allegedly admitted that she was drunk while at the hospital after the accident.

To complicate the situation for the defendant, this is charged as a second offense DWI. She was previously found guilty of DWI in Roanoke County in 2011. Her license was suspended as part of her sentence in that case. She did get a restricted license for her VASAP classes, but she is charged in the new case with operating the vehicle outside her restrictions.

Though somewhat unusual, this is not the first time a passenger in a vehicle has been charged with driving under the influence. In 2003, the Virginia Court of Appeals upheld a guilty verdict of a man who had grabbed the wheel of a family member’s car while he was drunk and caused an accident.

I can already see this case being used as a teaching tool for lawyers and law students. It presents several good questions about the law of Virginia DWI and driving on a DWI-suspended license.

First of all, to a layperson it seems crazy that a passenger could be charged with driving under the influence. However, Virginia law permits it. The DWI statute says that you can’t “operate” an engine while under the influence. As I’ve discussed before, operating means that you have actual physical control of the vehicle.

The second issue is a little more interesting to me. Virginia law has two main provisions against driving on a suspended license. The first statute (46.2-301) is the general rule that is normally used. That statute says you can’t “drive” while your license is suspended. However, the defendant in this case is charged with the more serious statute (18.2-272), which says you can’t “drive” OR “operate” on a DWI-suspended license.

Since the defendant wasn’t in the driver’s seat, I think it could be argued that she wasn’t “driving” the vehicle, so she could be found not guilty under 46.2-301. However, she was probably “operating,” under 18.2-272, which is unfortunately a more serious offense to most judges.

photo credit: smohundro

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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