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Can I still be charged with a DUI even though I wasn’t technically driving?

“Can I still be charged with a DUI even though I wasn’t technically driving?”

Yes. A driver in Virginia can be charged with a DUI, even if the car is in park or hadn’t moved at all since they entered into it. The Supreme Court of Virginia has upheld DUI charges for someone who was asleep in the passenger seat and the Virginia Court of Appeals has upheld DUI charges for someone who switched seats with the driver at a traffic stop and never actually “drove” the car.

So what is “the law”? The Virginia Supreme Court has held that a driver can be charged with a DUI when he or she is in “actual, physical control of the vehicle.” How the judge will determine whether someone was in “actual, physical control” of the car will depend on the facts of each specific case. Some of the factors that Virginia courts evaluate in deciding this question are whether the keys were in the ignition, whether any of the electrical devices were in use, and where the driver was seated within the car. However, this is not a complete list and no one single factor will determine the result of a given case.

Hiring an experienced DUI lawyer who knows how to present the facts of your case is important for those interested in defending against these charges. Because there is no black and white rule to determine whether someone was in actual physical control of the law, it is important to have representation by someone who will know what facts of your case are important to your defense. Your DUI case may very well come down to the presentation of seemingly minor facts and evidence, and an experienced attorney will know the best strategy for presenting evidence in court.

If you have recently been arrested for a DUI, call our office to schedule an appointment so that we can answer any questions you may have and better inform you of your options.


An outstanding job on my case to have custody, visitation and support decided in my home state instead of Virginia after I separated from military service.- A.E.