Can I Get a DUI Even if I’m Not Driving?

August 21, 2020
dui parked car

There is a common misconception among many people that in order to be arrested for driving under the influence, you actually need to be driving. However, in Fairfax and the rest of Virginia as a whole, this is not true. It’s possible to be arrested and charged with a DUI even if you aren’t actually driving your vehicle. This is because there are a variety of factors that may qualify you as having committed a DUI offense. It’s important to understand what all of this means and how it’s possible to receive a DUI charge even when you aren’t driving.

Operating a Vehicle in Virginia Defined

As per the Virginia Code 18.2-266, it is against the law for a person to drive or operate a motor vehicle while they are under the influence of drugs or alcohol. At the same time, it’s important to know that “operating” a vehicle does not necessarily mean actually driving it or even being on the road.

In the state of Virginia, you can be “operating” a motor vehicle by simply being in physical control of the vehicle and in a position to put it into propulsion. A common scenario to illustrate this status as being the car’s operator is to be inside the vehicle and having the key in the ignition. If a police officer comes by and notices you inside the vehicle and you seem to be under the influence of alcohol or drugs, you can be arrested and charged with a DUI. This can even stand if you are stretched out with the driver’s seat pushed way back, asleep. The car does not have to be on the road to warrant a person being arrested for a DUI.

It is important to note that this also applies to vehicles that have a push button to start. If you are found inside such a vehicle and have your key fob on your person or close to you, you can still be arrested for a DUI for being the operator of the car.

Not Intending to Drive isn’t a Defense

Although there are any number of reasons why a person might be impaired, not intending to drive is not considered a valid defense. Even if you have gone into the car and chosen not to drive because you consumed too many alcoholic beverages (for example, to “sleep it off”), you can still be charged with a DUI.

Of course, there are valid reasons to get into a car without driving it. They include the following:

• Safety purposes
• Using the car’s heater to stay warm
• Listening to the radio or checking the time
• Charging your phone to use it to call for a ride
• Rolling down the windows

However, if you are approached by the police and they see you sleeping in a vehicle with the key in the ignition, they may suspect you are intoxicated. This can even happen if you are not, in fact, under the influence of alcohol or drugs. If a police officer spots a person sleeping in a vehicle, they can come over and knock on the window to wake them and request to do a wellness check. Once the individual complies, if the officer detects the odor of alcohol or other indicia of intoxication, they can proceed with a full DUI investigation and/or place them under arrest for DUI.

If you need a Fairfax DUI lawyer after being arrested for a DUI even though you weren’t driving, you need Rudolphi Law on your side. When you speak with a Fairfax criminal attorney, you are assured the best criminal defense attorney Fairfax VA has to offer. Contact Rudolphi Law at your earliest convenience to discuss your case with an experienced Virginia criminal defense attorney.