| Read Time: 4 minutes | DUI
Can You Be Charged with a DUI If Not Driving

The acronym DUI stands for driving under the influence. Most people know that and do not need an explanation. However, many do not know that you can get a DUI while not driving under Virginia law. 

In Northern Virginia, DUI defense attorney Michael A. Pignone has the experience you can count on. Since 1995, Attorney Pignone and his team with the Law Offices of Michael A. Pignone have represented over 5,000 people facing criminal offenses, including DUI charges. With that depth of experience, there is a good chance he has handled a case similar to yours. Contact the Law Offices of Michael A. Pignone today.

How Can You Pick Up a DUI Charge If You Weren’t Driving?

Facing a DUI charge with no evidence that you were driving seems unfair and illogical. However, Virginia law allows the police to charge you with a DUI offense even though you were not technically driving. 

According to the Code of Virginia § 18.2-266, the police can charge you with DUI if you were driving or operating a motor vehicle while under the influence or with a blood alcohol concentration of 0.08% or higher. Section 18.2-266 does not define the term “operator.” You have to look elsewhere in the Code of Virginia for the definition.

Section 46.2-100 defines an operator as someone driving or exerting physical control over a motor vehicle while on a highway. The definition also includes a person who is controlling a car that is being towed by another vehicle. 

The Code of Virginia does not define actual control over a motor vehicle. Instead, we must look at court decisions for that definition.

In a case decided by the Virginia Supreme Court, the court announced a “bright line rule” by declaring that a person sitting in the driver’s seat with the key in the ignition is “operating the car” for purposes of Virginia law. The ruling did not depend on whether the key was in the “on,” “off,” or “accessory” position. 

You might wonder what harm could be done if the car is off and you are simply napping in the car or waiting for a ride. The court reasoned that all an intoxicated person needs to do is turn the key to drive the car, which imperils innocent citizens and drivers alike.

Defense for DUI While Not Driving

Typically, technology tends to move faster than the law. Since the latest technology does not require inserting a key into an ignition switch to start a car, the court will have to determine if possessing a key fob when sitting in the driver’s seat constitutes actual physical control over a vehicle. Until courts decide how to rule on that issue, the best thing to do is get out of the car or go in the backseat. Sitting in the driver’s seat implies you have control over the vehicle, especially if you have the key fob in your possession. 

You could have other defenses even if the police found you in the driver’s seat. Sitting in the driver’s seat without additional evidence does not mean you have actual physical control over the vehicle. If you do not possess the key fob, you could argue that you had no control over the car. Similarly, sitting in the driver’s seat of a vehicle you do not own does not invite the inference you had control over the vehicle (assuming you had permission to sit in the vehicle). 

You could also argue that you were not on a public highway when the police arrested you. These rules only apply to situations when the driver is in public. If the evidence in your case suggests that you were not on a public highway, you could have a winning defense.

Remember that the potential defenses you have depend on the facts of your particular situation. Defenses that worked in other cases might not apply to you. Hiring a DUI defense lawyer with decades of experience like Michael Pignone can help determine which defenses will serve you best.

Legal Defenses for DUI When Not Driving

The defenses we discussed above aim to persuade a fact-finder at trial, whether a judge or a jury, that you had no control over the vehicle. The goal is to win an acquittal because the prosecutor could not prove beyond a reasonable doubt that you had control over the vehicle. You might also have legal defenses that could result in the court dismissing your case or barring the prosecutor from using specific evidence at trial—thereby improving your chances of winning.

The police must have a reason to “stop you” and investigate in the first place. Sitting in a car without other evidence of a criminal act is no reason for the police to remove you from your car. The police can check your well-being, but they must let you go once they know you are okay. If they don’t, the judge could suppress all evidence from the subsequent encounter.

Similarly, a judge could suppress your statements from evidence if the police put you in custody and asked you questions without giving you your Miranda rights. A violation of Miranda rights means the prosecutor cannot use your statements against you in court.

Penalties for DUI with No Proof of Driving

The penalties for a DUI conviction in Virginia are harsh. You could go to jail for up to 12 months and pay a fine between $250 and $2,500 for your first offense. Having a BAC between 0.15% and 0.20% means you must go to jail for five days. Having a BAC over 0.20% means you must serve a 10-day jail sentence, even for your first offense. 

The court will revoke your license and compel you to attend the Virginia Alcohol Safety Action Program (VASAP). The VASAP administrator will monitor you while you are on probation. You will have to take an alcohol education class and possibly attend treatment. The court could grant you a restricted license, but you must install an ignition interlock device on your vehicle before using it.

The penalties increase significantly if you have prior DUI convictions, even from another state.

Can You Be Charged with a DUI If Not Driving? Yes, You Can!

Since 1995, the Law Offices of Michael A. Pignone have helped thousands of clients out of tough situations. If you have DUI charges even though you were not driving, contact award-winning Virginia DUI lawyer Michael A. Pignone right away. Attorney Pignone has the skill and knowledge to help you move past your DUI charges.

Author Photo

Michael Pignone

Michael Pignone was raised and has lived in Prince William County since 1972. He attended public schools in the county and graduated high school from Osbourn High in Manassas. Following high school, he attended George Mason University where he graduated with honors from the Business School with a Bachelor’s Degree in Finance. He was then accepted into, and graduated with honors from, Suffolk Law School in Boston, Massachusetts. Before entering private practice, he clerked for the Prosecutor in the Prince William County Commonwealth’s Attorney’s Office.

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