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How You Can Get Charged with a DUI/DWI Even if You Weren’t Driving

Many people are surprised to learn that they do not need to actually be operating a motor vehicle in order to be convicted of a DUI/DWI in Virginia. This is because state law allows a defendant to be convicted when you were merely “operating” a vehicle and Virginia law has a broad definition of what is considered to be “operating” a vehicle. For example, if you are sitting in your car with no actual intention of driving, you could still be charged with a DUI/DWI if Fairfax County law enforcement show up and suspect you are intoxicated or impaired.


This scenario highlights the many nuances and complexities associated with Virginia DUI/DWI laws. In many instances, you will need a strong and knowledgeable Fairfax County DUI/DWI defense lawyer to fight these charges. If you were arrested for a DUI/DWI and were not driving at the time, it is extremely important to schedule a free, confidential case review with a Fairfax County, VA DUI/DWI defense attorney.

The Broad Definition of “Operating a Vehicle” in Virginia

According to Virginia Code § 18.2-266, it is unlawful for someone to “drive or operate” a motor vehicle while under the influence of alcohol or drugs. However, to “drive” or “operate” extends beyond the general meaning or understanding of driving or operating a motor vehicle. In Virginia, a “driver” or “operator” is a person who “drives or is in physical control of a motor vehicle.” All that is necessary for police to arrest you for a DUI/DWI is for you to be in a vehicle with a key in the ignition.


This extremely broad definition of “operating” a vehicle was affirmed in a 2012 Virginia Supreme Court case, specifically Commonwealth v. Enriquez, 283 Va. 511 (2012). In this case, the Virginia Supreme Court stated that “when an intoxicated person is seated behind the steering wheel of a motor vehicle on a public highway and the key is in the ignition switch, he is in actual control of the vehicle, and therefore, is guilty of operating the vehicle while under the influence of alcohol within the meaning of Code § 18.2-266.”


The Virginia Court of Appeals has gone further and ruled that a vehicle does not even need be on a public highway in order for someone to be arrested for a DUI/DWI. A driver could be sitting in a parked vehicle in their own driveway with the key in the ignition and still be charged with a DUI/DWI in Virginia.

No Intention of Driving Not a Viable Defense

There may be multiple reasons why an impaired driver may be behind the wheel of a vehicle without intending to drive. For example, the driver may very well choose not to drive because they acknowledge that they had too much to drink. They may have gotten into their vehicle to “sleep it off” until they are sober enough to drive home. However, even in this scenario, the police could charge the motorist with a DUI/DWI.


Here are some other plausible explanations for why someone would get into a vehicle without planning on driving.

  • Staying in the vehicle for safety (i.e. can lock the doors);
  • Turning on the heat on a cold night;
  • Listening to the radio or checking the clock to know what time it is; and/or
  • Charging a phone to use to call a taxi or get a ride from someone else;


However, when the police see someone sleeping in a car with the key in the ignition, they may immediately suspect the driver is intoxicated. The police may knock on the window, claiming to be conducting a “wellness check.” When the driver opens the door or rolls down the window, the police may claim to smell alcohol and arrest the driver, even though the vehicle was stationary and no actual threat to other motorists.

Police Looking for Drivers in Parked Cars

In places like Fairfax, Arlington, Ballston, Clarendon, etc. it is quite common to see police patrolling parking lots and street parking areas late at night. The objective? Look for motorists asleep in their vehicles. The decision to sleep in their vehicle, as mentioned earlier, may have actually been the best and most responsible decision (especially when intending to sleep off any alcohol consumption), but police may still try and arrest someone for sitting in the driver’s seat while being impaired. If you find yourself in this situation, it is extremely important to retain the services of a skilled and experienced DUI/DWI defense lawyer.

Now is the Time for Action – Contact an Experienced DUI/DWI Defense Attorney with Dua Law Firm in Fairfax County

Sitting behind the steering wheel of a car while impaired may be enough to get arrested for a DUI/DWI in Virginia. However, even if you were arrested for a DUI/DWI, it does not mean you are guilty of a crime. In order to protect your rights, take action and schedule a free, confidential consultation with an experienced Fairfax County DUI/DWI defense attorney with the Dua Law Firm. We stand ready to fight for you.


Contact our DUI/DWI defense attorneys at (703) 382-7300 today!