The Virginia Verdict Review

Comprehensive and Informative Commentary on State and Federal Legal Matters

Virginia Supreme Court Opinion Creates Unintended Incentive to Drive Drunk

Given the most recent decision of the Virginia Supreme Court with respect to passive “operation” of a vehicle and the application ofVa. Code § 18.2-266, I wonder how many more citizens of the Commonwealth have to die before the General Assembly and the Supreme Court stop providing unintended incentives for drunk drivers to stay on the road.

In January of last year, in Nelson v. Commonwealth, 281 Va. 212 (2011), the Virginia Supreme Court affirmed the conviction of a man who, after being found asleep behind the wheel of his car with the radio running, was charged with DUI.  In support of this conviction, the Court reasoned that, by placing the car in the “on” or ‘accessory” position so as to activate the radio but not the ignition, the defendant was, in effect, operating the vehicle and was therefore in violation of Code 182.-266.  Alarmed by the implications of this ruling, I have been anxiously anticipating some form of retort or rebuttal from the legal community for the last year.  On March 2nd, that response finally arrived.  Unfortunately, it was not exactly the response I was looking for.  Instead of objecting to or overturning last year’s ruling, the Supreme Court of Virginia further solidified their opinion by affirming the DUI conviction of a man found sleeping behind the wheel. Enriquez v. Commonwealth, 2012Va. Lexis 49,March 2, 2012.  In doing so, I believe the Supreme Court has inadvertently signed the death warrant of untold drivers and passengers onVirginia highways.

In Enriquez,  the Defendant was originally investigated by the police after a parking meter attendant tried to ticket his car for being illegally parked in a bus zone and discovered him asleep inside.  Unable to rouse the man by knocking on the window, the attendant called the police and the situation progressed from there.  Ultimately, he was charged with (and later convicted of) DUI because he had the keys in the ignition so he could listen to the radio while his engine was off and car in park.

While some may not question the Defendant’s eventual conviction, my issues lies with the logic applied by the Supreme Court in reaching its decision.  Following previous cases, the Supreme Court engaged in an analysis  that focussed on whether a key was in a particular position in the ignition.  Va. Code § 18.2-266 prohibits a person under the influence from driving or operating a motor vehicle on the highways.  In Enriquez, the Supreme Court spends considerable effort stretching the definition of “operate” to now include merely having the keys in the ignition, even if the engine is off and the car is in park.  In its efforts in expanding the logical definition of “operate”, the Supreme Court has created a perverse incentive for drivers that will result in more deaths on theVirginia highways.

Because the Supreme Court’s reasoning criminalizes the simple act of turning on the heat on a cold night, or of listening to the radio, while  being drunk in a car, this opinion creates an incentive for drunk drivers, or those who feel the beginnings of impairment, to stay on the road.  There is no benefit to these drivers in stopping and resting and ensuring they are going to be safe.  As such a driver faces a criminal penalty if he stops and is caught, he has an incentive to keep going and to try to reach the safety of home.  Frankly, that is the last thing I want:  implicit encouragement to drunk drivers to stay on the road.  Based on the Court’s extension of previous cases, I fully expect it to find that the mere possession of car keys, when one has a push button ignition in his car, to be construed as “operating” the vehicle.  Again, more incentive not to stop, more incentive to stay on the road, more likelihood of killing someone.

I understand that drunk driving is a hot political button.  Every officer in the state makes a DUI inquiry during every traffic stop.  However, in non-alcohol related cases, the General Assembly has already provided an incentive for tired drivers to get off the road.   Under Virginia Code 46.2-830.1, the act of parking one’s car on the shoulder in order to rest is encouraged by removing any serious penalty for drivers who do so because they are feeling drowsy or tired.   Conviction for sleeping on the side of the road is a no demerit point offense.  The General Assembly has recognized that it wants tired drivers to get off the road.  It shouldn’t matter if he is tired because he has been up for twenty-four hours or because he has had too much to drink.  That driver needs to be off the road.  Instead, if the driver who has too much to drink does what society wants and pulls over to sleep, he faces a greater chance of being discovered and punished as a criminal, especially if one were to pull over in winter and need heat to stay alive while he sleeps.   Faced with that outcome, many a drunk driver will take the chance of getting home.  And, more people will be in accidents and more people will die.  It is the law of unintended consequences.

Now that the Supreme Court has spoken in Enriquez, our only hope is that the General Assembly overturns the Supreme Court’s decision through legislation.  I am not holding my breath.


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