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)

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.

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Wear Your Seatbelt

According to a study conducted in 2017, almost half of the people who died in fatal car accidents that year were not wearing seat belts.

The leading cause of death among those aged between 1-54 years is due to motor vehicle crashes. Wearing a seatbelt is an effective way to save lives in these crashes. However, young adults, between the ages of 18-24, are the least likely to wear seat belts. In 2019, around 1,600 young adults, ranging from the ages of 15 to 20, died in motor vehicle crashes, with almost half of them not wearing a seat belt.

Under Virginia Code 46.2-1094, any driver and any other person occupying the front seat must wear a seat belt along with any passengers under 18 years old. You should also know that in Virginia seat belt laws are both secondary and primary enforcement law. For adults 18 and older, the officer can’t pull you over for not wearing a seatbelt but if they pull you over for a different violation, you can be fined for not wearing a seat belt, as a secondary offense. For people under 18, the individual can be pulled over for not wearing a seatbelt, as a primary offense.

Regardless of the law on this matter, it is proven that seatbelts help save lives. The next time you’re driving somewhere, remember to buckle up!


Seat Belts: Get the Facts | Motor Vehicle Safety | CDC Injury Center

How Many Lives Do Seatbelts Save? – (2022 Stats!) (sensiblemotive.com)

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Three Essentials of Traffic Stop Etiquette

According to The Stanford Open Policing Project, more than 20 million motorists every year are pulled over. If you find yourself being pulled over, here are three essential tips to keep in mind:

1. Pull over safely

If you see those flashing lights behind you, pull over your vehicle as soon as you can. You should pull off to the right side of the road and turn of your car.

In addition to pulling over, you might want to turn on your hazard lights so as to alert other drivers that you are pulling over.

Whenever an officer is behind you with flashing lights, it is always a good idea to pull over, even if you are unsure about the reasoning for the stop. Pulling over will show the officer you are aware of your surroundings and that you are willing to be cooperative.

2. Remain in the car

Unless the officer has directed you to exit the vehicle, remain in your car, with your hands on the steering wheel. Be sure to fully roll down your window when the officer approaches the vehicle. Once the officer has greeted you. you will be asked to present your driver’s license and vehicle registration.

3. Be Respectful

You might be confused as to why you were pulled over, maybe even irritated as you have things to do, but it is very important you remain calm and act respectful towards the officer. Acting otherwise could lead the officer to escalate what was once a simple stop.

Being respectful toward the officer can also be helpful towards your case. Sometimes the officer will issue you a warning instead of a ticket. Regardless of what the officer does, always remain respectful because if you end up in front of a judge, everything will be repeated to the judge.

Remember, no one likes getting pulled over but following these few tips will help make the process go smoother. Police officers are human too so be respectful, it might even reduce your penalty.


Findings – The Stanford Open Policing Project

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.