Virginia DUI – When are you operating the vehicle?

Virginia DUI has a large body of law to determine what it actually means to be “operating” a vehicle. I think we need to change it.

Video Transcription

Hello, my name is Andrew Flusche. I’m a Virginia traffic and DUI attorney. One issue that I think we’ll be seeing a lot more of in the future for DUI’s is whether or not you were actually operating the vehicle.

Virginia law says that you can be found guilty of DUI for driving or operating a motor vehicle. So you just have to be operating it. The Virginia Supreme Court clarified what that means earlier this spring in the Enriquez case. What they say is that if you have control, actual physical control, you’re considered to be operating it.

So how is that going to apply when we have cars that have keyless ignitions; if you have a keyless ignition or perhaps a remote starter? You could be having actual physical control to turn the car on and off from quite a distance away from the vehicle. You could be sitting inside a bar and have your keys in your pocket and actually be in physical control to turn the vehicle on and off from way far away from the vehicle. I think that issue is going to come up more often in the future as far as DUI’s go and there could be cases floating around right now that have that very issue; perhaps somebody was on their way out to their car with a keyless ignition, with the key fob in their pocket, and they were stopped in between, before they got to the car, for suspicion of DUI and got charged. Even though they did have the intent to go, I would argue that they certainly weren’t operating the vehicle. Nobody, at least not many people I think, would support that being a DUI. So I think in Virginia we’re going to need to change our law to clarify what operation means because I don’t think those are the kinds of cases that we want to punish for DUI.

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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