What happens in Virginia if a person drinks heavily at home, is thrown or nagged out of the house by the remaining family members on a cold night for acting all drunk or for overstaying his or her welcome as a guest, and goes into his or her car in the home’s driveway to sleep off the alcohol and get some warmth from the car’s shelter? Or what if the person drinks at home and just wants to stargaze in the same car in the same place while playing the radio? As the Virginia Supreme Court affirmed today 4-3, if a police officer happens upon the drinker in the car’s driver’ seat and finds the keys in the ignition (even if the ignition is off) or the ignition on (even if only to run the car’s heater), the drinker is now subject to possible arrest and conviction for driving while intoxicated. Justin Sarafin v. Virginia, ___ Va. ___ (October 31, 2014). Sarafin affirms the listening to the radio while intoxicated conviction that I blogged about last year.

Thanks to the three dissenting judges in Sarafin for strongly urging that the governing Virginia law precludes a DWI conviction when the keys are in the ignition but the vehicle is off, so long as the vehicle is not on a highway, whereby "highway" includes private property open to the public (a shopping center, for instance), but certainly not the driveway or remaining property at one’s own detached house.

Sarafin results from the sadly pre-existing appellate law that allows for a Virginia DWI conviction for merely being behind the wheel on a highway with the ignition off but the key in the ignition, under the view that the key can immediately be turned into the on position. What, then, does that say about the many newer cars that do not require being started with the key in the ignition? Logic would be turned on its head to allow a DWI conviction for being behind the wheel of such a keyless car that is turned off. Why, then, treat driver seat occupiers of keyed ignition cars more harshly than those in keyless ignition cars, by allowing a conviction of the first group but not the second group, merely because the first group has the key in the ignition? Treating the two differently also favors people with more money available to purchase a car with a keyless ignition, because keyless ignitions are generally only available in newer cars (more expensive than purchasing an older used car) and often more expensive cars.

Sarafin will be a great case for Virginia’s Supreme Court to rehear/reconsider, to give a chance for at least one of the 4-3 majority to switch sides.