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LRWI in Virginia – Listening to the Car Radio While Intoxicated is a Jailable Offense

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When my clients get arrested for drunk driving in Virginia, sometimes I mention how much better they would have fared in Maryland, which has no mandatory minimum jail sentencing for first-time driving while intoxicated (DWI) defendants, less harsh sanctions than Virginia on driving for first-time DWI charges, and the real opportunity under many circumstances for first-time DWI guilty verdicts to obtain a probation before judgment, which means being able to say the defendant has not been convicted and also means not getting any points against one’s license.

Why, then, have I left the relative Maryland paradise — compared to Virginia — for DWI defendants? It is too easy for me to say that I need not have any concern about this matter where I have not gotten behind the wheel in over twenty-six years after consuming alcohol, because that ignores my living in a state (Virginia) that has too harsh a criminal justice system, not only with DWI laws, but also with its thirst for putting people on death row, making possession of schedule I and II drugs (other than marijuana) a felony, and the list goes on. I live and work in Virginia despite that harshness and because avoiding a state for its history of harboring the Confederacy’s capital is dualistic and overlooks that Virginia ultimately elected an African American governor.

Further highlighting the harshness of Virginia’s DWI law is this week’s appellate decision affirming a conviction for DWI for a man simply sitting in his car in his own driveway listening to the radio, with the keys in the ignition. Sarafin v. Virginia, ___ Va. App. ___ (Oct. 8, 2013). In retrospect, Sarafin should have been in a Prius instead, because I understand that Priuses can be started without a key and make no noise. The key concept (pardon the expression) behind the Virginia appellate decisions allowing a DWI conviction when merely having the key in the ignition with the engine off is that it takes just a flick of the wrist on that same key to turn on the ignition.