Can I really get a DUI for “sleeping it off?” (How Virginia defines “Operating a Vehicle.”)

At Abrenio Law, we get calls from many people surprised that they were charged with a Virginia DUI for “sleeping it off” in their car.  Before you talk to anyone, take some time to review this information.

How does sleeping in your car count as drunk driving?

To understand this, read the case of Sarafin, 288 Va. 320 (2014).  There, the defendant was found parked in his own driveway, asleep, with the key in the auxiliary position, and he was listening to music.  Upon being questioned by law enforcement, he admitted to drinking earlier in the day, coming home, drinking more, then going to his car to sleep and listen to music.  He explicitly stated he had no intention of leaving his driveway.

At trial, the defendant moved to dismiss his DUI charge because he wasn’t “operating” his car on a “public highway,” which would seem to be required under Virginia’s DUI statute, Va Code. 18.2-266.  Ultimately, his conviction was upheld by the Virginia Supreme Court.

“Operating” doesn’t mean driving.

In upholding the conviction, the Court stated that Virginia DUI law doesn’t require that you actually have to be driving your car:

“Operating” means “engaging the machinery of the vehicle which alone, or in sequence, will activate the motive power of the vehicle.” Manipulating the electrical equipment was one step between the “off” position and the point at which the motive power would be activated. While Nelson’s action in turning the key to the “on” or “accessory” position of the ignition did not alone activate the motive power, it was an action taken “in sequence” up to the point of activation, making him the operator of the vehicle within the meaning of Code § 18.2–266.

Further, the Court went on to opine that, to be guilty of DUI, you need only have “actual physical control” of the vehicle:

[I]n discerning whether an intoxicated person seated behind the steering wheel of a motor vehicle … with the key inserted into the ignition switch of the vehicle is in actual physical control of the vehicle, the position of the key in the ignition switch is not determinative. [W]hen an intoxicated person is seated behind the steering wheel … and the key is in the ignition switch, he is in actual physical 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… In this case, Sarafin was in actual physical control of his vehicle. He was seated behind the steering wheel, and the key was in the ignition switch. Accordingly, under our prior case law, the evidence was sufficient to conclude that he was an operator of the vehicle.

Don’t you have to be on the road to be guilty of a Virginia DUI?

The short answer is – no.  Again, in upholding the defendant’s conviction in Sarafin, the Court found that Virginia 18.2-266 didn’t have an explicit requirement of being on a “public highway” for purposes of a DUI:

Code § 18.2–266 contains an explicit “on a highway” requirement for the operation of mopeds. However, the statute includes no explicit language requiring an operator of a motor vehicle to be “on a highway” to sustain a conviction under Code § 18.2–266

This doesn’t make sense.  I was trying to be safe by not drinking and driving.

Look, I get it.  Personally, I think that we should encourage efforts to avoid drunk driving.  However, the Court has recognized that people make unpredictable decisions when drunk:

Ordinary experience tells us that one in a drunken stupor in the driver’s seat of a vehicle is likely to arouse abruptly, engage the motive power of the vehicle, and roar away imperiling the lives of innocent citizens. This sequence of events easily can occur where, as here, a drunk is sitting behind the steering wheel of a motor vehicle alone, with the key already in the *327 ignition. From a mechanical standpoint, the vehicle is capable of being immediately placed in motion to become a menace to the public, and to its drunken operator.

Whether I agree with this logic really doesn’t matter.  The law is the law. If you’ve had too much to drink, don’t sleep it off in your car.  Call a Lyft.

Still have questions about your Virginia DUI?

Make sure to check out our DUI Practice Page where we’ve answers a lot of other important questions about Virginia DUI Law. And then make sure to give us a call for your FREE Consultation at Ph. 703-570-4180.

You can also learn more about Owner James Abrenio here.