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In Virginia, beware being asleep and drunk in the driver’s seat, with the key in the ignition, but off

Mar 05, 2012 In Virginia, beware being asleep and drunk in the driver’s seat, with the key in the ignition, but off

Image from National Institute of Standards & Technology.

Last year, I blogged about winning a drunk driving trial where the police officer found my client asleep at the wheel of a car in a parking lot with the ignition running and with my client’s exhibiting significant hallmarks of being under the influence of alcohol. In Maryland, merely being asleep in a parked car with the ignition running does not automatically amount to the driving or attempted driving behavior that can expose a person to a drunk driving conviction, as “long as such individuals do not act to endanger themselves or others.” Atkinson v. Maryland, 331 Md. 199, 627 A.2d 1019 (1993).

Atkinson  “set forth six factors which must always be taken into account when assessing the potential danger presented by the various circumstances of each case: 1)‚whether or not the vehicle’s engine is running, or the ignition on; 2)‚where and in what position the person is found in the vehicle; 3)‚whether the person is awake or asleep; 4)‚where the vehicle’s ignition key is located; 5)‚whether the vehicle’s headlights are on; 6)‚whether the vehicle is located in the roadway or is legally parked…  No one factor will be dispositive of whether an individual was in ‘actual physical control’ of the vehicle.” Atkinson.

Ironically, a day before I tried the above-discussed case, the Virginia Supreme Court went the opposite direction of Atkinson, ruling 6-1 that one is an operator of a motor vehicle for purposes of a drunk driving prosecution, merely by being asleep at the wheel of a parked car with the key simply turned to the position to have the radio playing. Nelson v. Virginia, 281 Va. 212, 707 S.E.2d 815 (2011).

Sadly, now one year later, the Virginia Supreme Court last Friday amended Nelson further towards prosecutorial-friendly terrain, ruling unanimously that one is an operator of a motor vehicle for a drunk driving prosecution merely by being in the driver’s seat with the key in the ignition in the off position, even when asleep. Enriquez v. Va., ___ Va. ___ (March 2, 2012).

What will Virginia courts do about such hybrid cars as Toyota Priuses, that do not require a key to start the car, and do not make a noise to alert anyone that the car is turned on? My Westlaw research of all federal and state courts found no published court opinion treatment of this issue in the drunk driving context. Clearly, I agree with Atkinson, want Enriquez overturned, and vehemently oppose having Enriquez permit a drunk driving conviction when a Prius driver has the car off but the key readily available.

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