A few months ago, a potential and viable DWI/DUI defense in Virginia was to argue that a person was not legally operating a vehicle simply because the key was in the ignition. With the right facts, the argument, thus legal defense, could easily result in an acquittal of the DWI or DUI charge. A few months ago, DWI/DUI lawyers would routinely inquire if the car’s engine or electrical equipment was actually engaged. In other words, was the car on or not? Was the radio on or not? Were the lights on or not? Those questions typically would lead to an examination of the precise position of the key in the ignition. Was the car key in the 1st position or 2nd position? In other words, depending on where the key was positioned in the ignition, an intoxicated person may or may not be guilty of driving under the influence. That type of legal examination however, is no longer relevant.
A recent Virginia Supreme Court decision, Commonwealth vs. Enriquez, has essentially put an end to not only that legal analysis but also that particular defense. In finding the driver guilty of driving under the influence in Commonwealth vs. Enriquez, the Supreme Court has now established a bright line rule. When an intoxicated person is found behind the wheel, the sole question becomes whether the key is in the ignition. If so, then no additional analysis or examination is needed and that person is guilty of driving under the influence within the meaning of Virginia Code section 18.2-266. Not only does this rule apply a more restrictive definition of “operating” but it also clearly indicates a continuing effort to crack down on drunk drivers.