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In Nelson v. Commonwealth, the Virginia Supreme Court held that a defendant was "operating" a vehicle within the meaning of Va. Code 18.2-266 when he was found passed out behind the wheel of his vehicle.
When the officer responded to a call reporting a passed out driver on the side of the road he saw that "the lights of the factory mounted radio inside the vehicle were on and he could hear music but the engine was not running and the gearshift lever was in the park position." The officer also observed that the key was in the on position, but the car was not on. Based upon this conclusion, the Court affirmed the DUI conviction.
The Court also restated that only if the the key is in the off position and, therefore, not engaging the mechanical or electrical equipment of the car, is someone not operating within the meaning of the statute. There are a number of cases that address this point as well as the scenario where the officer cannot remember whether the key was in the off or on position. A Fairfax DWI Attorney can explore this area of Virgina DUI law with you.
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