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Vehicle Stops for DUI in Virginia

An officer has the authority to make a vehicle stop when they witness any unlawful act such as speeding or running a red light or erratic driving such as changing lanes quickly or varying speeds which raises reasonable suspicion that the driver is under the influence. If a stop is made arbitrarily, say for the color of the driver’s skin the stop is most likely to be deemed unlawful and any evidence gathered due to the stop will be inadmissible at trial.

Virginia statutes say that in order to be guilty of DUI/DWI one must be driving or in “actual physical control” of a motor vehicle. The courts have interpreted the meaning of “actual physical control” on a case by case basis. For instance, when someone was found in their car in a ditch with the car on and in gear they were found, by the courts, to be in “actual physical control” even though the car was not moving. Also, when someone was found head on the steering wheel with the vehicle running they were found to be in “actual physical control” although the transmission was broken and rendered the vehicle inoperable. In these cases all defendants were found in the driver’s seat and in substantial control of the vehicle even though they were not moving. Taking this a step further, courts have also found that one need not have their entire body in the vehicle. In one case, a man was found the car stopped on an exit ramp with both doors but the engine was open and the headlights and taillights were illuminated; however, the defendant was not sitting in the vehicle as in the previous examples, this defendant was standing outside and vehicle and leaning into the vehicle. He was still found to be in “actual physical control” of the motor vehicle and was charged with and convicted of DUI/DWI. As a general rule, an appellate court stated that when the engine is running and the defendant’s body is inside the motor vehicle they are in “actual physical control” and therefore guilty of a DUI/DWI.

Again, the defendant cannot be arrested unless the arresting officer has a warrant, or personally witnessed the defendant in actual physical control of the motor vehicle before the arrest was made. For example, suppose a vehicle is stopped in the middle of a highway, stalled and the driver is attempting to get the car back in gear. Another motorist reports this strange behavior, but when the officer arrives the defendant is standing on the side of the road. In this instance, the defendant did not commit the offense in the presence of the officer and therefore cannot be arrested without a warrant for DUI.  But, a general answer to this question, “can I be arrested for DUI even when the car is not moving?” is yes, but it is typically a case by case basis.

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