Section 18.2-266 of the Code of Virginia begins by saying, “[i]t shall be unlawful for any person to drive or operate any motor vehicle . . .” Section 46.2-100 defines “operator [of a motor vehicle]” as any person who “is in actual physical control of a motor vehicle on a highway.” So, in a DWI/DUI case, the prosecutor must prove that you “drove” or “operated” the car. This may seem like a simple concept, but Virginia courts have been debating the definition of “operate” in DWI/DUI cases for years.
Presence in or around a car when stopped is not enough to prove operation. BUT, operation can be proven by a driver’s presence plus starting the engine, or “manipulating the mechanical or electrical equipment of the vehicle without actually putting the car in motion or engaging the machinery of the vehicle which alone, or in sequence, will activate the motive power of the vehicle.” See Rix v. Commonwealth, 282 Va. 1 (2011).
In the Rix case, an officer saw a vehicle “weaving” on the highway and stopped the car. While doing so, he saw the driver exchange seats with the front-seat passenger. The driver, who had been behind the steering wheel while the car was in motion, was in the passenger seat when the officer reached the car. The former passenger was Ellen Marie Rix (the defendant) whom the officer found sitting in the driver's seat behind the steering wheel. The keys were in the ignition and the engine was running. At trial, the original driver admitted she was driving the car initially and switch seats at the last minute. The Supreme Court of Virginia still concluded that because the officer observed Ms. Rix in the driver’s seat, with the keys in the ignition she “operated” the motor vehicle and was, therefore, guilty of DWI.
In another 2011 case decided before Rix, police found the defendant slumped over the steering wheel of his car, parked in a residential neighborhood, asleep or unconscious. The car's radio was playing but the engine was not running and the ignition key was turned to the position that allowed the radio to operate while the engine was not running. The gearshift was in the “park” position. The Virginia Supreme Court opined the defendant was “operating” the vehicle, even when unconscious because, by turning the ignition key to the “on” or “accessory” position, allowing the radio to operate, he had manipulated the electrical equipment of the vehicle. 281 Va. 212 (2011)
If driving after drinking, when in doubt of your sobriety, pull over, take the keys from the ignition and call for a sober ride home.