Can You Get a Virginia DUI if You Are Found Sleeping in Your Car?

Here’s a common scenario for you… You were out with friends and had more to drink than you anticipated. At first, though, you thought you were capable of driving, but then soon realize it is not a good idea. So, you pull over — thinking you are doing the right thing — and decide to rest for a bit to let the alcohol content in your blood dissipate. 

When you pull over, you close your eyes to rest and fall asleep. Someone driving or walking by sees you and calls the police. The police conduct a wellness check to make sure you are ok. And that’s when they notice bloodshot eyes and smell alcohol on your breath. Immediately, you are asked if you had been drinking. You think there’s no harm in answering in the affirmative since you were not driving. And there they have you: you are under arrest for DUI as shock overwhelms you.

This and other scenarios play out far too often in the DC/Virginia metro area. People who think they are doing something responsible get arrested for it. Here’s what you should keep in mind the next time you do the right thing and not drink and drive.


To understand how you can get arrested for a Virginia DUI when you were found sleeping in your car means you must understand the language of the DUI statute. The statute states that you can be found guilty of a DUI if you were “operating” a vehicle while illegally intoxicated. The question becomes: what does it mean to be operating a vehicle within the meaning of this statute?

In a 2012 Virginia Supreme Court case, Enriquez v. Commonwealth, the Court established the following rule:

…when an intoxicated person is seated behind the steering wheel of a motor vehicle on a public highway and the key is in the ignition switch, he is in actual physical control of the vehicle and, therefore, is guilty of operating the vehicle while under the influence of alcohol within the meaning of Code § 18.2-266.

As a result, you can now be charged for a DUI if you fall asleep in the driver’s seat with the keys in the ignition. Many people do keep the keys in the ignition because they want the radio on to keep them company or because it is too warm or too cold in the vehicle. 


There are obvious ways you can prevent a Virginia DUI, and that is: 

  • have a designated driver;
  • call a taxi;
  • create an Uber or Lyft account; or
  • use public transportation.

That said, though these are obvious things, it doesn’t always happen. You drive your vehicle to the party, the restaurant, the bar, or wherever it is you are having a drink; it’s also logical you want to leave with your car, too. No one wants to have to pick it up the following day, especially with a hangover. Besides, you may have driven thinking you would not have much to drink but a glass or two over a period of time and after consuming food. In that case, if you do decide to be responsible and not drive but sleep the alcohol off in your vehicle, be sure to:

  • Keep the keys out of the ignition; and
  • Sleep in the backseat.

With the above as part of the facts of your case, it will be harder for the prosecutor to prove that you are guilty beyond a reasonable doubt. And the jury will sympathize with you.

If you have questions about your DUI arrest, especially if you were asleep or sitting in your vehicle at the time the police found you, contact an experienced criminal defense attorney at S.L England, PLLC. These are serious charges and should not be taken lightly. Call us today at (202) 489-0720 or contact us online.

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