Commonwealth v. Lopez
2015 Va. Cir. LEXIS 111, 90 Va. Cir. 413 (2015)
Rule of Law:
Under Virginia law, a person is considered to be 'operating' a motor vehicle for purposes of a DWI conviction if they are in 'actual physical control' of the vehicle, which can be demonstrated even when the engine is off, but the vehicle's electrical accessories are active via a key fob or traditional key, indicating the vehicle's immediate capability to be put into motion.
Facts:
- On March 23, 2014, Officer C. A. Wright of the Fairfax County Police Department encountered Hanssell Lopez in the driver’s seat of a Nissan Murano.
- The vehicle's engine was shut off, some internal lights were on, and it was backed into a handicapped parking spot in a restaurant parking lot.
- Lopez appeared to be sleeping and had a set of keys, including an electric vehicle key fob, in his right hand.
- Lopez told the officer he was waiting for a friend and had consumed three to four beers at the Coastal Flats restaurant.
- Lopez’s blood alcohol content was later determined to be either .18 or .24 grams per 210 liters of breath.
- The Nissan Murano utilizes a push-button ignition system requiring a key fob to be present, and the fob can activate electrical accessories (ACC position) with one press or turn on the ignition system (on position) with two presses.
Procedural Posture:
- Hanssell Lopez pleaded not guilty in the General District Court and was convicted of DWI 1st Offense, BAC over .20%, in violation of Virginia Code § 18.2-266.
- The General District Court sentenced Lopez to a fine, jail time, probation, ASAP referral, and loss of driving privileges.
- Lopez appealed his conviction to the Circuit Court.
- Lopez was arraigned by the Circuit Court and entered a plea of not guilty.
- The Circuit Court heard the case without a jury and took it under advisement.
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Issue:
Does a defendant 'operate' a motor vehicle under Virginia Code § 18.2-266 when found intoxicated and asleep in the driver's seat of a parked car with the engine off, but holding a key fob that has activated some internal electrical accessories, making the vehicle capable of immediate motion?
Opinions:
Majority - Judge Robert J. Smith
Yes, Hanssell Lopez was 'operating' the vehicle for purposes of Virginia Code § 18.2-266 because he was in 'actual physical control' of it, as evidenced by his possession and apparent use of the key fob to activate electrical accessories, rendering the vehicle capable of immediate movement. Virginia Code § 46.2-100 defines 'operator' or 'driver' as any person in 'actual physical control' of a motor vehicle on a highway. The Supreme Court of Virginia has consistently upheld this definition for DWI cases, particularly in scenarios where an intoxicated individual is found in a parked vehicle with keys in the ignition or, in this modern context, a key fob activating auxiliary power. The court cited Sarafin v. Commonwealth, where a defendant passed out in a car with the key in the ignition (auxiliary power on) was deemed to be operating the vehicle due to the potential to 'arouse abruptly, engage the motive power...and roar away imperiling the lives of innocent citizens.' Similarly, Enriquez v. Commonwealth held that 'actual physical control' is the standard, and the position of the key is not determinative, with evidence of manipulating electrical equipment being sufficient. In this case, Lopez’s apparent use of the key fob to activate radio panel lights was analogous to turning a traditional key to the 'ACC' position or backward, which prior cases established as sufficient 'actual physical control.' The court rejected the argument that the Commonwealth must prove the key fob specifically belonged to the Nissan Murano, referencing Nelson v. Commonwealth, which held that the prosecution is not burdened to negate 'what could have been or what was a possibility' regarding the key's functionality.
Analysis:
This case reinforces and expands the interpretation of 'operation' in Virginia's DWI statute to encompass vehicles with modern keyless ignition systems. It clarifies that 'actual physical control' does not require the engine to be running or the key to be in the 'on' position, but can be established by the mere activation of auxiliary electrical functions if the vehicle is capable of being immediately put into motion. The ruling significantly eases the evidentiary burden on the prosecution in proving the functionality of a key or key fob, focusing instead on the potential for immediate danger posed by an intoxicated individual in control of a vehicle, regardless of the precise technical state of the ignition.
