- The Washington Times - Sunday, April 15, 2012

A person found intoxicated behind the wheel of a car parked on a public road with a key in its ignition will automatically be considered guilty of drunken driving, according to an unprecedented ruling by the Virginia Supreme Court.

The decision handed down this month stems from a case in which Alexandria police officers found Jean Paul Enriquez apparently asleep behind the wheel of a Toyota, illegally parked in a bus zone, early in the morning on Sept. 18, 2009. Knocking on the driver’s side window, sun roof and roof did not arouse him — nor did a flashlight shined in his face.

When he finally was roused and got out of the car, Officer Aloysius Asonglefac “could smell a strong odor of alcoholic beverage” and “a strong odor of marijuana” coming from the car. Mr. Enriquez appeared “confused,” “didn’t seem to [k]now where he was,” thought “he was in Arlington,” was “going to see his girlfriend” but was not sure “as to where his girlfriend was,” according to court documents. He failed field sobriety tests and was placed under arrest.

A drunken driving conviction was upheld by the state Court of Appeals.

Officer Asonglefac said that he could hear the radio playing when he approached the car, and that when the keys were removed from the ignition, the radio went off. But he could not remember whether the keys were in the “on” or “off” position.

The court has issued different opinions on such matters. For example, it upheld the conviction in a case where the drunken defendant was found sitting behind the wheel of a car stuck in a ditch with the motor running, the car in gear and a rear wheel spinning.

But it has reversed at least two convictions, including one in which a drunken defendant was found asleep at the wheel of his parked car with the engine turned off but the key in the ignition. The arresting officer — as in Mr. Enriquez’s case — could not remember whether the key was in the on or off position.

Mr. Enriquez’s attorneys complained that the court has not “established a bright line rule to determine whether a person is operating a motor vehicle as a matter of law.”

The court did him one better.

“From the foregoing, we establish the rule that 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,” wrote Senior Justice Harry L. Carrico in upholding Mr. Enriquez’s conviction.

Delegate David B. Albo, Fairfax Republican and chairman of the House Courts of Justice Committee, said the takeaway from the ruling is that prosecutors in such cases likely will have to prove that the key was in the ignition.

“Courts aren’t supposed to make law — they’re only supposed to fill in the gaps,” he said.

Mr. Albo, a trial lawyer, helped push through a bill during the 2012 General Assembly session that requires first-time drunken-driving offenders to drive with ignition interlock devices that prevent cars from starting if drivers are over the legal limit for alcohol and requires second-time offenders to install them in their vehicles. Currently, the ignition-interlock requirement only applies to second-time offenders or cases where the driver’s blood-alcohol content is 0.15 or higher.

Some have suggested that the penalty is too harsh, but Mr. Albo, while acknowledging that the law will be tough to implement at first, said he wasn’t terribly concerned about that notion.

“The solution is not to drive drunk,” he said. “So I don’t have too much sympathy. The only people wringing their hands are the defense attorneys. I’m just hoping that these interlock companies live up to their promise and are ready on July first. Because there’s going to be a lot of people.”

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