- The Washington Times - Wednesday, August 1, 2012

A man convicted of drunken driving in Alexandria is taking his fight to the U.S. Supreme Court, challenging an unprecedented ruling in March from Virginia’s highest court that someone drunk behind the wheel of a car parked on a public road with a key in the ignition is now automatically guilty of drunken driving.

Attorneys for Jean Paul Enriquez, in their petition for the high court to take the case, argue that the Virginia Supreme Court cannot “retroactively criminalize” an action without fair warning and that the ruling violates their client’s constitutional right to due process.

The dispute has roots in a 1992 case in which the state’s highest courtreversed the driving-under-the-influence (DUI) conviction of a man found behind the wheel of a parked car with the engine turned off. The arresting officer in that case could not remember whether the keys had been in the “on” or “off” position. The officer who arrested Mr. Enriquez in 2009 similarly said he could not remember the position of the keys but recalled hearing the radio playing — an indication the keys were in the “on” position — when he approached the car in which Mr. Enriquez apparently was asleep.

The court upheld Mr. Enriquez’s conviction and drew a line in the sand as well.

“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,” Senior Justice Harry L. Carrico wrote in the March opinion.

Alberto Salvado, an attorney for Mr. Enriquez, said the ruling could result in unintended consequences ranging far beyond the case.

“How can they make the law for my guy when it wasn’t the law when my guy committed the act?” he asked. “If the Supreme Court doesn’t take this writ, then out there is a case that contradicts a huge purpose of our legal system, which is, hey, you live in a society, you conform to the laws, and they’re not going to arbitrarily change.”

Mr. Enriquez was denied a rehearing in April, so the U.S. Supreme Court is his last option, Mr. Salvado said.

Delegate Scott A. Surovell, Fairfax Democrat, who practices criminal defense law, said he was shocked by the ruling.

“Every criminal lawyer that practices criminal defense in Virginia thought the line was sitting in the car, key in the ignition, key turned on in some way, and this just changed that out of the blue,” he said. “The constitutional problem is that when the Supreme Court sets a rule 20 years ago and then the legislature doesn’t do anything, at least one inference is that the legislature is OK with how the Supreme Court defined the law.”

But the court ruled that the dissenting opinion in the 1992 case was correct and that the position of the key in the ignition switch “is not determinative” in such instances.

Mr. Enriquez’s attorneys conceded that courts certainly can change their minds but said people still have a right to fair notice of what’s considered “criminal conduct.”

“State courts are of course inherently empowered to change their reasoning, but when a state court announces a new substantive rule that criminalizes conduct previously interpreted not to be within the ambit of a statute, it does so in derogation of the Due Process Clause of the U.S. Constitution,” they wrote.

Mr. Salvado also noted potential public-safety consequences from the ruling: People might be a bit more willing to openly breach the law if the penalty for driving drunk is equivalent to being found drunk inside a parked car.

“[If] just being inside of a car is occupying the car, you might as well take the chance and try to get all the way home,” he said. “What’s the benefit of sleeping it off?”

Both Mr. Salvado and Mr. Bernhard said they harbored no ill will toward the state Supreme Court and it was simply a spirited argument resulting in what Mr. Bernhard called “an honest, good-faith disagreement.”

But, he noted, the implications are far larger.

“I think this issue transcends party or ideology and gets to the core of one of the principles of the justice system,” Mr. Bernhard said. “What constitutes a fair notice of crime?”

“Who knows? Maybe lightning will strike and they’ll be interested,” he added.

• David Sherfinski can be reached at dsherfinski@washingtontimes.com.

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