In Nelson v. Commonwealth, the Virginia Supreme Court held that a defendant was "operating" a vehicle within the meaning of the Virginia Code when he was found:
- passed out behind the wheel of his vehicle
- the key in the on position
- with the radio on
- with th engine off
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 that the DUI conviction was proper.
The Court also restated that only if 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.
In Virginia You Do Not Need to be Driving to be Charged with DWI or DUI
That's right - in Virginia you do not need to be driving to be charged and convicted of "driving" under the influence. The DWI and DUI laws in Virginia treat driving and operating as the same. The appellate courts in Virginia have repeatedly expanded the definition of operating that it now encompasses sitting behind the wheel of a parked car with the engine off if other factors are present.