In March, we analyzed the Supreme Court of Virginia’s holding in Sarafin v. Commonwealth, wherein the drunk driving conviction of an occupant of a vehicle, passed out in his driveway with the key turned to auxiliary, was affirmed. The Court’s theory was that the statute only requires an intoxicated person to be “in actual physical control” of a vehicle on a highway to be guilty of drunk driving.

In July, the Circuit Court of Fairfax County heard a case presenting a similar defense and reached a similar result in Commonwealth v. Lopez. Unlike Sarafin, Lopez was on public property – the parking lot at Coastal Flats. But also unlike Sarafin, his key was not in the ignition. Instead, he had in his pocket a key fob that permitted the car to be turned on at the touch of the ignition button.

There seems to have been no real dispute that Lopez was intoxicated – his BAC was at least twice the legal limit – and no one seriously disputed that the parking lot constitutes a “public highway.” The real issue was whether Lopez – who was apparently asleep in his car waiting for a friend to pick him up – was “operating” the vehicle. Under the circumstances of this case, a driver is operating the vehicle if he “drives or is in actual physical control” of the vehicle.

The undisputed facts showed that Lopez had the fob in his pocket and that some of the vehicle’s interior lights were on. Judge Robert J. Smith noted that the fob must be “present” for the car’s push-button ignition to operate, but significantly, the court stated that “[t]he evidence does not establish what exactly is meant by present. Certainly, though, the fob must be at least in the immediate vicinity of the car.”

Perhaps the public policy implications of the Sarafin and Lopez cases should be examined. People get drunk. Should the Commonwealth encourage them to wait in their car for a ride or attempt to sleep it off rather than risk trying to drive home? The purpose of this article is not to take a position on public policy issues. It is, however, to again raise the red flag to people who may find themselves prosecuted for drunk driving without having any intention to drive. That risk is real – all you have to have to do is hold a key fob close enough to the car for the push-on ignition to work. Welcome to the world of latent drunk driving.