Virginia Code 18.2-266 states:
“It shall be unlawful for any person to drive or operate…“
How can I be convicted of driving under the influence when I wasn’t even driving?
The law in Virginia does not limit DWI to driving – the law makes it illegal to “drive or operate any motor vehicle.” Driving is pretty easy to define. If you are motoring down the road you are driving. No surprises there.
Operation is more difficult. Judges first looked to the Code for definition but it doesn’t really help all that much:
- “Operator” or “driver” means every 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. Virginia Code 46.2-100.
- The Code just adds “actual physical control” to the mix, but then actual physical control needs to be defined. Courts in Virginia have gone back and forth over the exact definition of operate until 2012 when the Supreme Court of Virginia created a simple, bright line rule: (paraphrasing) if your butt is in the driver’s seat and the key is in the ignition you are operating.
- Asleep on the side of the road, with the engine off, but keys in the ignition? Operation.
- Drink a few inside your house, walk to your car to listen to some tunes with your butt in the seat and keys in ignition? Operation.
- Car stuck in a ditch with no hope of getting it out but butt in the seat and key in the ignition? Operation.
- In a few cases, you don’t even need to be in the driver’s seat. In Leake v. Commonwealth, Leake was leaning into his running truck in the middle of the road. The Court of Appeals found operation. In Dugger v. Commonwealth, the court found operation when the drunk passenger grabbed the wheel of a moving car.
My friend with a previous DWI got pulled over. We switched places before the officer got to the car. How can they charge me with DUI?
This scenario happens with amazing regularity. The “true” driver can be charged and convicted of driving under the influence while the friend who switched can be charged and convicted with operating under the influence assuming the car keys were still in the ignition when they switched seats.
What the law says:
§ 18.2-266. Driving motor vehicle, engine, etc., while intoxicated, etc.
It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (v) while such person has a blood concentration of any of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood. A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii), (iv), or (v).
For the purposes of this article, the term “motor vehicle” includes mopeds, while operated on the public highways of this Commonwealth.