Virginia DUI Laws: “Driving or Operating”

Brandon WaltripCriminal Defense

The Virginia laws on Driving Under the Influence are fairly set in stone. The Legislature in Richmond, however, continues to change the laws in respects to punishment. Each year they try to raise the mandatory minimum as to Fines, Incarceration Periods, and Periods for a Loss of License. But, that doesn’t change the case law. Here is an overview of different Virginia Cases involving “Driving or Operating” decided over the years.

  1. To operate a vehicle is to “drive or be in actual physical control of a motor vehicle.” Nicolls v. Commonwealth, 212 VA. 257
  2. The ability to move a vehicle from place to place, in a functional sense, is not required in order to “operate.” Keesee v. Commonwealth, 32 VA. App. 263
  3. There is no bright line rule for “operating” or “driving,” the motor need not be running or its ignition switch be in the “on” position for a conviction of DUI. Propst v. Comm., 24 Va App. 791
  4. Violation may occur in a parking lot; driving or operating must not occur on a public highway. Gray v. Comm., 23 VA. App. 351
  5. Defendant did not drive or operate car since key ignition did not engage car …. because the presence of the key in the ignition switch in the off position did not engage the mechanical or electrical equipment of the carthe defendant did not “drive or operate” the car within the meaning of the statute. Stevenson v. City of Falls Church, 243 VA. 434.

Propst and Stevenson seem to contradict one another as to ignition systems. Propst is the more recent Virginia Supreme Court case and is likely controlling. An interesting point to consider though is regarding keys and ignitions in the new keyless start vehicles. Hypothetically, if a driver is seated in a car with a keyless ignition, or a push-button ignition system, the vehicle can be started at anytime by simply pushing a button. Would Courts consider this in the “on” position? Is the vehicle even “operable” prior to ignition? There is no “ignition switch” to put a key in and turn to the “on” position?