Nuts and Bolts of DUI – “Drive or Operate”

November 19, 2019
individual driving with an open bottle

Did you know that you could be DUI without actually driving a vehicle? In a previous discussion, I provided background on what it means to be intoxicated as it pertains to DUI. Now I will discuss the peculiarities of the “drive or operate” element of the offense.

You will notice throughout my writings that I often say “drive or operate” when describing the actions that make up a DUI charge. This is a characteristic of an experienced Virginia DUI attorney. The reason we say “drive or operate” is because the legislature states it this way in Virginia Code 18.2-266 and because the current legal decisions from the Courts draw a distinction requiring both “drive” and “operate” to be considered.

Most people instinctively imagine a DUI as something that occurs when someone is driving drunk. Unfortunately, there is more to it than that. Without getting into the historic details, the lawmakers in Richmond wrote “drive or operate” when drafting Virginia Code 18.2-266. Because they used the word “or,” the Courts have determined that these are two different activities.

If we know what it means “to drive,” it begs the question: what does it mean “to operate?” Under Virginia law, “to operate” a motor vehicle means to be in physical control of the motor vehicle in such conditions that render the motor vehicle capable of propulsion. For example, if you are seated in the driver’s seat with the keys in the ignition, you are operating the motor vehicle. If you do this while in an intoxicated state, then you are DUI.

The concept of operation doesn’t stop there. Courts have ruled that being in the driver’s seat with a key fob for push-start vehicles is considered “operation” for the same reason a key in the ignition is operation. Thus, you could be asleep in your car without it running and still be found guilty of DUI in these circumstances.

As always, despite the expansiveness of the law, not all is lost. A skilled Fairfax County DUI lawyer might be able to discover other legal issues in your case to help. Was the vehicle physically incapable of propulsion? Was the vehicle on private property or a public highway? These are but a few issues among a whole host that could help you case. Considering you can be DUI without actually driving, hiring a qualified DUI trial attorney is absolutely necessary in order to get the best outcome in your case. Consult our attorney at Rudolphi Law.