WARNING: You can be Charged with DUI even if you are not Driving

According to Virginia Code 18.2-266, it is unlawful for a person to drive or operate any motor vehicle while under the influence of alcohol or drugs. To better understand how you can be charged with DUI without driving the car, the word “operate” is important.

In Commonwealth v. Enriquez, the Supreme Court of Virginia established a bright line rule regarding what it means to “operate” a vehicle. The Court reasoned, “We take this opportunity to state that the statutory definition of “operator” is controlling and that any individual who is in actual physical control of a vehicle is an ‘operator.’” The Court goes on to say, “when an intoxicated person is seated behind the steering wheel of a motor vehicle on a public highway and the key is in the ignition switch, he is in actual 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 Sarafin v. Commonwealth, the Supreme Court once again examined what it means to be charged with DUI while sleeping in a parked car. Here, the Court deemed that for a person to be charged with DUI, it does not matter whether the car is on a public highway or in a private driveway, as long as the individual is in control of the vehicle then they can be charged with DUI.

So next time you are out having fun and decide to sleep in your car before heading home, maybe think about getting a ride instead. You could potentially be charged with DUI.


Enriquez v. Commonwealth, 283 Va. 511, 722 S.E.2d 252 (2012)

Sarafin v. Commonwealth, 288 Va. 320, 764 S.E.2d 71 (2014)

What is the Difference Between an Infraction and a Misdemeanor in Virginia?

You might be confused what exactly a traffic offense is. There are two main types of traffic offenses: an infraction and a misdemeanor.

Usually what you think of in regard to a traffic offense is a simple infraction that is usually penalized with a fine and points on a person’s driving record. Some traffic infractions include speeding and running a red light, all of which are punishable by a fine and points on your record.

In Virginia there are a few traffic offenses that are to be charged as a misdemeanor. Some of these being reckless driving and driving on a suspended license. Misdemeanors carry a heavier punishment which can result in jail time and will appear in a criminal background check.

If you are holding a ticket for a traffic offense it is important to know whether you are facing an infraction or a misdemeanor. This is one reason why a reckless driving charge is so significant in Virginia. Reckless driving carries potential jail time and will show up on a criminal background check. There are many ways to fight a reckless driving charge to eliminate or reduce the charge. Contact our office today for a free case evaluation. Our attorneys have experience in courts throughout Hampton Roads, including Virginia Beach, Norfolk, Chesapeake, Portsmouth, Suffolk, Isle of Wight, Hampton, and Newport News.

Does Miranda Apply to Traffic Stops?

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

If you’ve heard these words before then you know them as your Miranda rights, or the Miranda warning derived from the Fifth Amendment. It is also likely that you have heard a few myths about Miranda rights. One of these misconceptions is that during a traffic stop, an officer must read you your Miranda Rights or the charges against you will be dismissed. This is simply not true.

Miranda Rights only have to be read in scenarios where an individual is in police custody or they under questioning by law enforcement. Therefore, if an officer pulls you over for any reason, and does not arrest you, then your Miranda Rights will not be read.

However, just because your Miranda Rights are not required to be read to you during a traffic stop, it does not mean that you can’t invoke your Fifth Amendment rights. After the officer requests to see your identification and registration, the officer will often ask a few questions. Such as, how fast were you driving? Do you know why I pulled you over? Invoking the Fifth Amendment gives you the right to refuse answer incriminating questions.

Although it is important to note that whatever you chose, always remain cooperative and respectful towards police officers. Cooperation can be a key factor in helping your case if charged with a traffic offense.

DISMISSED – Reckless Driving & Failure to Appear

Attorney Pat Trompeter recently secured a full dismissal of both reckless driving and failure to appear in Suffolk General District Court. Our client was charged with reckless driving under Virginia Code § 46.2-853. After failing to appear at the first court hearing, a capias was issued for the client’s arrest. Driving Defense Law was able to skillfully navigate a strategic gameplan that resulted in a full dismissal of all charges. Have you been charged with reckless driving in Virginia? Contact our office for a free case evaluation. Our team will vigorously fight for you and your legal rights!


Reckless driving is a serious offense in Virginia as it is punishable as a Class 1 misdemeanor under Virginia Code 46.2-868.

If you find yourself holding a ticket for reckless driving, contact Driving Defense Law as you could be facing a criminal record.

18.2-11 Punishment for Conviction of Misdemeanor

Class 1 misdemeanor – confinement in jail for up to a year and a fine of up to $2,500. (either or both)

There are 16 different categories of reckless driving as detailed by the Virginia Department of Motor Vehicles. Including:

  1. Speeding more than 85 mph
  2. Speeding 20 mph or more over the limit
  3. Driving too fast for conditions
  4. Racing
  5. Passing or overtaking an ambulance or fire truck
  6. Passing a stopped school bus
  7. Passing on the crest of a hill
  8. Passing at a railroad crossing
  9. Passing two vehicles abreast
  10. Driving two vehicles abreast
  11. Failure to signal
  12. Driving with faulty brakes or improper control
  13. Reckless driving on parking lots
  14. Reckless driving with an obstructed view

What is considered reckless driving under the Virginia Code?

  • Exceeding the speed limit 46.2-862
  • Driving too fast for road or traffic conditions 46.2-861
  • Failing to maintain proper control of the vehicle 46.2-853
  • Racing 46.2-865; 46.2-866; 46.2-867
  • Failing to yield the right of way 46.2-861.1; 46.2-863; 46.2-868.1
  • Failing to give proper signals 46.2-860
  • Driving with an obstructed view 46.2-855
  • Passing a stopped school bus 46.2-859
  • Passing on or at the crest of a grade or curve 46.2-854

A conviction of reckless driving carries with it 6 demerit points and up to 11 years of staying on your record. See the following:

  • Speeding in excess of 85 mph (11 years)
  • Speeding 20 mph or more above the posted speed limit (up to 11 years)
  • Racing (11 years)
  • Passing or overtaking an emergency vehicle (11 years)
  • Passing a school bus (11 years)
  • Passing on the crest of a hill (11 years)
  • Passing at a railroad crossing (11 years)
  • Passing two vehicles abreast (11 years)
  • Driving too fast for conditions (11 years)
  • Failing to give a proper signal (11 years)
  • Faulty brakes/improper control (11 years)
  • Reckless driving in parking lots (11 years)
  • Reckless driving with an obstructed view (11 years)

Virginia Code and Other Information:


“Irrespective of the maximum speeds permitted by law, any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving.”

  • Every person convicted of reckless driving is guilty of a Class 1 misdemeanor.
  • Every person convicted of reckless driving and was driving without a valid license or as a result of reckless driving caused the death of another is guilty of a Class 6 felony
  • Punishment includes a mandatory minimum fine of $250

Class 1 misdemeanor – confinement in jail for up to a year and fine of up to $2,500. (either or both)

Exceeding the Speed Limit 

A person is guilty of reckless driving who drives a motor vehicle on the highways in at a speed of 20 miles per hour or more in the excess of the applicable maximum speed OR in excess of 85 miles per hour regardless of the applicable maximum speed limit.

Failure to Maintain Control

After a car accident a police officer might hand you a citation that charges you with failure to maintain control (reckless driving). Failure to maintain control is charged as a Class 1 misdemeanor.

driving defense law traffic attorney

How to Reduce Reckless Driving to Improper Driving

You’re probably here because you’ve been pulled over for reckless driving. If that’s the case, you need to know about improper driving. There is a big difference between being charged with reckless driving versus improper driving.  

Reckless driving is punishable as a Class 1 misdemeanor under Virginia Code 46.2-868. This punishment carries with it potential jail time for up to a year and a fine of up to $2,500. In addition, you are facing 6 demerit points to be added to your driving record that will remain for up to 11 years. You can receive a ticket for reckless driving a number of different ways. Including: 

  1. Speeding more than 85 mph 
  1. Speeding 20 mph or more over the limit 
  1. Driving too fast for conditions 
  1. Racing 
  1. Passing or overtaking an ambulance or fire truck 
  1. Passing a stopped school bus 
  1. Passing on the crest of a hill 
  1. Passing at a railroad crossing 
  1. Passing two vehicles abreast 
  1. Driving two vehicles abreast 
  1. Failure to signal 
  1. Driving with faulty brakes or improper control 
  1. Reckless driving on parking lots 
  1. Reckless driving with an obstructed view 

No one wants to be charged with reckless driving. But did you know, you can often get your reckless driving ticket reduced to improper driving? 

Under Virginia Code 46.2-869, someone who receives a reckless driving ticket can often obtain a reduction of their ticket to improper driving if the degree of culpability is slight. The degree of culpability considers many factors, including whether you have a clean driving record, whether you performed community service, if you took the effort to complete a driver improvement course, and whether it was a borderline speeding case.  

The punishment for improper driving is much less than reckless driving. If charged with improper driving, you are facing a $500 fine and 3 demerit points on your driving record that will remain for 3 years. While paying a fine and receiving demerit points is not ideal, you are no longer facing jail time or the possible suspension of your license.  

If you find yourself holding a ticket for reckless driving, contact the attorneys at Driving Defense Law so we can create a unique gameplan and roadmap for your case. We will work with you and attempt to obtain a dismissal or reduction of your charge. Our attorneys have experience in Courts throughout Virgina, including Virginia Beach, Chesapeake, Norfolk, Portsmouth, Suffolk, Isle of Wight, Hampton, Newport News, Northampton, Accomack and beyond. It is our privilege to serve you and protect your legal rights! Call now for a FREE case evaluation.

Copyright © Driving Defense Law – A Division of McCormick Law, PC. All rights reserved. The results of specific cases reported are not meant to be a prediction or guarantee of any other case. Each case depends upon a variety of factors specific to that case. The testimonials on this website reflect the real-life experiences and opinions of our clients. However, the experiences are personal to those particular clients, and may not necessarily be representative of all clients. We do not claim, and you should not assume, that all clients will have the same experience. Your outcome may vary.