In July of 2015, a Virginia court tackled the interesting issue of what constitutes “operating a vehicle” for the purposes of the DUI/DWI statute in a car that started with a key fob and not a traditional key. The Fairfax County Circuit Court, in the case of Commonwealth v. Hansell Lopez, ruled that a person is “operating” a vehicle when they were asleep in the driver seat of a vehicle with a key fob in his hand. The Court found that even though the car was not running, the defendant was operating the vehicle and therefore guilty of DUI.
Although the typical plan language description of a DUI or DWI is “driving” under the influence, the law does not only criminalize driving a vehicle under the influence. In fact, the language of law prohibits the “operation” of a motor vehicle under the influence. Operator is defined as “any person who either (1) drives or is in actual physical control of a vehicle on a highway or (ii) is exercising control over or steering being towed by a motor vehicle. It is easy to decide when a person is driving a vehicle, but a lot tougher to decide what constitutes “actual physical control.” The Courts have found that operation not only includes moving the vehicle from one place to another but includes any manipulation of the mechanical or electrical equipment of the vehicle. This expands the definition to turning the lights on, or putting the car in the ACC position to listen to the radio. It is well settled that if the engine is running, but the car is not moving, it is still operation.
The Courts have found that operation turns on whether the vehicle is capable of being operated at the time the driver is found. Just last year, the Court affirmed a conviction of someone who was passed out in their own driveway with the key in the ignition and the car’s auxiliary power on. Although there is not bright line rule, operation usually requires that the key is in the ignition, though not necessarily turned to any position.
With today’s new technology, it is unsettled law on whether operation includes just being in your vehicle with a key fob in your pocket. One Court has decided that constitutes operation, but the higher courts have not weighed in yet.
If you have questions about a DUI or DWI arrest, and what constitutes operating under the influence, call the DUI/DWI lawyers at Winslow & McCurry at 804-423-1382.
