What is "Operating" for Virginia DUI?

If you have a Virginia DUI, one critical issue for the Commonwealth to prove is that you did in fact “drive or operate” the vehicle.

What does that mean?

“Drive” is pretty clear. If you’re making the vehicle go somewhere, you’re driving.

The real issue comes up due to the word “operate.” What does it mean to “operate” a vehicle with respect to a Virginia DUI charge?

This seems like a no-brainer, but it can be a pivotal point for some DUI cases. For example, if the vehicle is wrecked on the side of the road, and the defendant doesn’t admit to driving, the Commonwealth may have a tough time proving that he actually “operated” it. Also, there are a surprising number of cases where a person is sitting in their car in a parking lot and the police approach to begin a DUI investigation.

Where’s the line?

We’ve had lots of cases that interpret the statute over the years, but the Supreme Court clarified the rule (and I suggest expanded it) earlier this year in the Enriquez case. In that case, the defendant’s vehicle was illegally parked at a bus stop. The driver was asleep in the driver’s seat. The officer testified that the key was in the ignition, but didn’t know if it was actually turned to the “on” position.

The Supreme Court ruled that Enriquez was operating and upheld his conviction for Virginia DUI.

In Virginia, you are considered to be “operating” the vehicle if you are in “actual physical control” of it. Basically, it doesn’t matter if the key is engaged or not. You just have to be in control. Thus, sitting in the driver’s seat with a keyless ignition may even be enough.

What does this mean for regular folks?

If you think you may have had too much to drink, don’t drive. Call a cab or a friend. And definitely do NOT sit in your car to wait for a ride. Simply sitting in the car with your keys–even if the car is OFF–could be enough to be convicted of Virginia DUI.

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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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