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DWI in Your Driveway

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James Irving
BKK Business Law Newsletter
March 2015

Drivers in the Commonwealth be forewarned: a conviction for driving while intoxicated does not require that the defendant be driving the vehicle or that it be on a public road.

In October of 2014, the Supreme Court of Virginia affirmed the conviction of Charlottesville resident Justin Sarafin for Driving While Intoxicated (“DWI”). It was largely uncontested that Mr. Sarafin was intoxicated when K. E. McBrearty knocked on his car window at 3:30 in the morning. It was also uncontested that he was parked in his driveway at the time and the car’s ignition was not engaged.

Mr. Sarafin spent part of the evening at a local pub, shopped for some groceries and went home where “he consumed additional alcohol.” Unable to sleep and the house radio being broken, he went out to his car parked in the driveway around 2:30 in the morning to listen to the radio. He fell asleep with the key in the ignition turned to auxiliary.

Responding to a noise complaint an hour later, Officer McBrearty encountered Mr. Sarafin and asked him to exit the car. Sarafin smelled of alcohol and when he failed several field tests and the breath test, McBrearty arrested him for DWI.

The trial presented one of those rare cases with very little in dispute. The defense focused on the statutory definition of “operation” of a vehicle and whether Sarafin could be convicted of DWI since he was on a private driveway rather than a public road. The court provided such an exhaustive analysis of the language of the statute and case law as to leave the impression that they were conscious of the apparent inequity of the result – or even that they would have been happy had the analysis led to a different conclusion.

But the Court was clear that DWI does not require that the car be on a public highway: “the plain language of Code § 18.2-266 demonstrates there is no ‘on a highway’ requirement for the operation of motor vehicles. The General Assembly clearly … chose not to do so where the operator of a motor vehicle is intoxicated.” You are not immune if you confine yourself to your private property.  

Turning to the larger issue, the Court held that DWI does not require that the operator be driving or even have the intention of driving. He does not even have to be in the driver’s seat. The facts of the case put Sarafin behind the wheel, but as a matter of law, that was coincidental. In Virginia, it is “unlawful for any person to drive or operate any motor vehicle… while such person has a blood alcohol concentration of .08 or more….”

While “operate” is not defined in the DWI statute, it is defined elsewhere as a “person who drives or is in actual physical control of a motor vehicle.” In Williams v. City of Petersburg (another DWI case), the Supreme Court of Virginia held that “operating” a motor vehicle includes “not only the process of moving the vehicle from one place to another, but also includes starting the engine or manipulating the mechanical or electrical equipment of the vehicle without actually putting the car in motion. It means engaging the machinery of the vehicle which alone, or in sequence, will activate the motor power of the car” (italics added).

Given the broad language adopted by the legislature and the Court, Sarafin v. Commonwealth begs a series of intriguing questions. If manipulating the mechanical or electrical equipment of a vehicle while intoxicated is enough to earn a conviction for DWI, is it illegal to repair your car’s starter in your driveway while intoxicated, since you’d likely test the result by starting the engine?  Is it unlawful to wax your car with the radio on while intoxicated, with the key turned to auxiliary in the ignition? Are you drunk driving if you exit your house and unlock your car with an electronic key, even if your only intention is to remove something from the trunk? Given an aggressive officer and prosecutor, the answer to all three questions is probably “yes.”

Perhaps the DWI statute is an unartfully drafted law in this respect, but it is the law. The examples above may seem far-fetched, but laws have been stretched further to achieve greater injustice.