Driving on Suspended / Revoked — DUI-Related
Va. Code § 46.2-391 / § 18.2-272 — Prosecutor Reference
1. Charging Decision
| Offense | Statute | Grade | Key Requirement |
|---|---|---|---|
| Driving on DUI-related suspension — 1st offense | § 46.2-391(A) | Class 1 misdemeanor | Suspension must be DUI-related; defendant must have notice |
| Driving on DUI-related suspension — 2nd offense within 10 yrs | § 46.2-391(B) | Class 1 misdemeanor / mandatory active | Prior DUI-related driving on suspension within 10 years |
| Driving on DUI-related suspension — 3rd+ offense within 10 yrs | § 46.2-391(C) | Class 6 felony | Two or more prior DUI-related driving on suspension within 10 years |
| Driving after BAC suspension (§ 46.2-391.2) | § 46.2-391.2 | Class 1 misdemeanor | Administrative suspension in effect from failed/refused test |
| Driving on general suspension/revocation | § 46.2-301 | Class 1 misdemeanor | Any order of suspension/revocation; broader statute; use when DUI nexus is absent |
| Driving after 3rd conviction (habitual offender) | § 46.2-391(D) | Class 6 felony / mandatory active | Defendant declared habitual offender; driving in violation |
| Operation by person adjudicated habitual offender — DUI at time | § 46.2-391(D) + § 18.2-266 | Felony + DUI | Stack charges; habitual-offender status adds felony exposure |
| DUI causing maiming (serious bodily injury) | § 18.2-51.4 | Class 6 felony (unlawful) / Class 4 (malicious) | Combination offense where underlying operation is DUI |
| DUI causing death (involuntary manslaughter) | § 18.2-36.1 | Class 5 felony (aggravated Class 5) | Death results from DUI operation |
2. Elements Quick Reference
- Operation of a motor vehicle Same definition as DUI — must be operating, not merely occupying. Engine running, defendant in driver's seat with control satisfies operation.
- On a public highway Same broad construction as DUI — includes areas open to the public for vehicular traffic. Public parking lots qualify.
- During the suspension or revocation period The suspension must be in effect at the exact time of the offense. Confirm start date and any expiration date. A suspended license that has been reinstated defeats the charge.
- The suspension/revocation was DUI-related For § 46.2-391 specifically: the suspension must be attributable to a DUI conviction (§ 18.2-271), a DUI-related revocation (§ 46.2-389), or a BAC administrative suspension (§ 46.2-391.2).
- The defendant had notice or knowledge of the suspension Notice element — critical. DMV mails a suspension order to the address of record. Actual knowledge is not required; constructive notice from the mailing satisfies the element if not rebutted.
- Identification — defendant is the person who operated the vehicle Link the defendant to the vehicle through officer observation, admissions, registration, or witness testimony.
3. Statutory Architecture — Know the Suspension Types
Post-Conviction DUI Suspension — § 18.2-271
A court imposing a DUI conviction must suspend the defendant's privilege to operate a motor vehicle. The suspension period corresponds to the offense: 1st offense — 12 months; 2nd offense — 3 years; 3rd+ — indefinite revocation. This is a judicial suspension imposed at sentencing. The DMV implements it.
Administrative Suspension — § 46.2-391.2
Upon a DUI arrest, the officer swipes the defendant's license and issues an administrative suspension effective 7 days after service for a first-offense failed test, or immediately upon arrest for a refusal. This suspension runs while the DUI charge is pending. Driving during an administrative suspension is a separate Class 1 misdemeanor under § 46.2-391.2.
DUI-Related Revocation — § 46.2-389 / § 46.2-391
Multiple DUI convictions trigger a mandatory revocation under § 46.2-389. Operating a motor vehicle after revocation under this section, when the revocation is DUI-related, is what elevates the charge to § 46.2-391 and triggers the felony exposure on a third offense within 10 years.
§ 18.2-272 — Violation of Restricted License Conditions
Where the defendant has a restricted license (VASAP, ignition interlock), operating a vehicle in violation of those restrictions — for example, driving without the interlock, or driving to a non-permitted destination — is charged under § 18.2-272, not § 46.2-391.
4. Notice / Knowledge — Proving the Defendant Knew
- Obtain the full DMV transcript — shows the suspension event, effective date, and the address to which notice was mailed
- Notice mailed to last known address of record — constructive notice; actual receipt not required
- Did the defendant appear in court on the underlying DUI conviction? If so, the court suspended the license in open court — actual notice in the courtroom
- Did the court mail the order after the DUI sentencing? Check the court file
- Did the officer conduct a license check at the traffic stop? The defendant's awareness that their license was suspended (e.g., prior knowledge, officer told them on a prior stop) is strong actual knowledge
- Prior stops for driving on suspended — prior charges for DOLS demonstrate actual knowledge of the suspension status
- Defendant's statement — did they tell the officer they knew their license was suspended?
- Did defendant have another state's license? License from another state does not cure a Virginia suspension
5. Mandatory Minimums — § 46.2-391
| Offense | Grade | Mandatory Active | Fine |
|---|---|---|---|
| 1st offense — driving on DUI suspension | Class 1 misdemeanor | Mandatory: 10 days active | $500 minimum |
| 1st offense — during administrative DUI suspension (§ 46.2-391.2) | Class 1 misdemeanor | Varies — VERIFY current § 46.2-391.2 | VERIFY |
| 2nd offense within 10 yrs | Class 1 misdemeanor | Mandatory: 20 days active | $500 minimum |
| 3rd offense within 10 yrs | Class 6 felony | Mandatory: 30 days active | $1,000 minimum |
| 4th+ offense within 10 yrs | Class 6 felony | Mandatory: 90 days active | $1,000 minimum |
| Habitual offender — first | Class 1 misdemeanor | Mandatory active — VERIFY | VERIFY |
| Habitual offender — subsequent / BAC 0.08+ | Class 6 felony | Mandatory: 1 year active | VERIFY |
| Operating while revoked causing serious injury | Class 6 felony | Mandatory: 1 year active | VERIFY |
| Operating while revoked causing death | Class 5 felony | Mandatory: 1 year active | VERIFY |
| Restricted license violation — § 18.2-272 | Class 1 misdemeanor | Mandatory: 10 days active | $500 minimum |
| Ignition interlock violation | Class 1 misdemeanor / revocation | Varies — VERIFY | VERIFY |
| Operating commercial vehicle on DUI suspension | Class 1 misdemeanor / CDL disqualification | VERIFY — CDL rules apply | VERIFY |
| § 18.2-272 — violation of restricted license in DUI-related case | Class 1 misdemeanor | Mandatory: 10 days active | VERIFY |
| § 46.2-203.1 — operating after out-of-state DUI suspension | Class 1 misdemeanor / Class 6 felony (repeat) | VERIFY current mandatory | VERIFY |
| § 46.2-341.24 — CDL / commercial vehicle DUI suspension | Felony (repeat) | VERIFY | VERIFY |
| § 46.2-816 — reckless driving while suspended / accident | Class 6 felony + suspension | VERIFY | VERIFY |
| § 46.2-852 — reckless driving companion charge | Class 1 misdemeanor | None | None mandatory |
| § 46.2-853 — failure to obey highway signs while suspended | Class 1 misdemeanor | None | None mandatory |
6. Accident / Injury Companion Charges
| Circumstance | Companion Charge | Grade |
|---|---|---|
| Death results from operation on DUI suspension | § 18.2-36.1 — DUI manslaughter | Class 5 felony (aggravated Class 5) |
| Serious bodily injury results | § 18.2-51.4 — DUI maiming | Class 6 / Class 4 felony |
| Property damage / failure to stop after accident | Hit-and-run statutes; assess severity of damage | Misdemeanor to Class 5 felony |
| Underlying DUI in addition to DOLS | § 18.2-266 — charge both offenses | DUI grade per § 18.2-270 |
| Reckless driving in connection with accident | § 46.2-852 | Class 1 misdemeanor |
| Obstruction / flight | § 18.2-460 | Class 1 misdemeanor / Class 6 felony |
7. Administrative Suspension Traps
- Administrative suspension is automatic upon arrest — it begins immediately (refusal) or 7 days after service (failed test) The officer seizes the license and issues a temporary permit. Driving during this period is a separate criminal offense under § 46.2-391.2.
- If the underlying DUI is dismissed or acquitted, the administrative suspension is still a civil DMV matter and may still have been in effect at the time of the DOLS offense The DOLS charge does not merge with or depend on the underlying DUI conviction.
- Multiple concurrent suspensions — a defendant may have both a post-conviction suspension from a prior DUI and a new administrative suspension from the current DUI arrest Either suspension in effect at the time of driving supports the DOLS charge — identify all active suspensions in the DMV transcript.
- Restricted license — if the court grants a restricted license under § 46.2-391(A), the defendant may only operate during the restricted period for permitted purposes Driving outside the permitted purposes or without the interlock is charged under § 18.2-272, not § 46.2-391.
- Out-of-state suspensions — a Virginia DUI results in Virginia suspending the Virginia privilege, which applies even if the defendant holds an out-of-state license The defendant cannot cure a Virginia suspension simply by obtaining a license in another state.
8. Defense Attacks & Responses
| Defense attack | Prosecution response |
|---|---|
| No notice — I didn't know my license was suspended | Constructive notice from DMV mailing to address of record is sufficient. Show the DMV transcript suspension entry and the mailing address. Prior court appearance at DUI sentencing (actual notice in open court) defeats the claim. |
| Wrong suspension — it was for child support / failure to appear, not DUI | Confirm the source of the suspension in the DMV transcript. If it's not DUI-related, charge § 46.2-301 (general DOLS) instead. If the DUI suspension is concurrent with other suspensions, it still supports § 46.2-391. |
| Not operating — I was parked, sleeping, or not driving | Operation: engine running, defendant in driver's seat with key in ignition and control of the vehicle. Elicit officer's observations of the vehicle in motion or the defendant's admissions of recent driving. |
| Not a public highway — private property | Parking lots and roads open to the public for vehicular traffic qualify. Confirm the location description in the officer's report. |
| License was reinstated before the offense | Pull the full DMV transcript through the offense date — confirm no reinstatement event before the offense. A pending reinstatement application does not constitute reinstatement. |
| Prior conviction records incorrect — prior offense is more than 10 years old | Verify the date of the prior offense from certified court records, not the DMV abstract. The 10-year window runs from offense date to offense date. |
| Restricted license — I was driving for a permitted purpose | The restricted license specifies narrow permitted purposes and hours. If driving for a non-permitted purpose, § 18.2-272 applies. Confirm the destination and purpose at the time of the stop. |
| Emergency — I had to drive to avoid greater harm | Necessity is an affirmative defense requiring immediate, unavoidable harm with no reasonable alternative. Pre-planned or avoidable driving does not qualify. Driver had time to arrange alternative transportation. |
| Out-of-state license — I had a valid license from another state | A Virginia DUI suspension bars operation of a vehicle in Virginia regardless of an out-of-state license. The Virginia privilege is suspended; the out-of-state license does not restore it. |
| Plea for reduced charge (§ 46.2-301) — no DUI nexus to suspension | If the DMV record confirms a DUI-related suspension, insist on the § 46.2-391 charge. The DUI nexus is what triggers the mandatory minimums and felony exposure. |
9. Pre-Trial Checklist
- Full DMV transcript obtained — suspension event, effective date, type, and notice address confirmed
- Suspension confirmed as DUI-related (post-conviction under § 18.2-271, administrative under § 46.2-391.2, or revocation under § 46.2-389)
- Suspension was in effect on the date and time of the offense
- Notice/knowledge element covered — mailing to address of record, or in-court suspension at DUI sentencing, or prior DOLS charges
- Offense grade confirmed — 1st, 2nd (within 10 yrs), or 3rd+ felony
- Prior DOLS conviction records obtained — certified copies, dates within 10-year window verified
- Mandatory minimum calculated and confirmed for the applicable tier
- Defendant identified as the operator — officer testimony, admissions, or witnesses
- Stop basis documented — what prompted the traffic stop?
- Companion DUI charge assessed — was the defendant also DUI at the time?
- Accident companion charges assessed — injury, death, property damage
- Restricted license conditions reviewed — was a restricted license in effect?
- Administrative suspension status confirmed if § 46.2-391.2 charge is also filed
- Defendant's current address confirmed against DMV record for notice argument
- Prior out-of-state convictions reviewed for inclusion in habitual offender analysis
- VASAP and ignition interlock — confirm compliance status for sentencing context
- Victim notification if accident with injury (§ 19.2-11.01)
10. Preliminary Hearing Script (Felony 3rd Offense)
A. Identifying the Defendant and the Operation
- Officer, on [date] at [time] in [jurisdiction], did you have an encounter with the defendant, [name]?
- Please identify the defendant in court today.
- What prompted you to stop the vehicle being operated by the defendant?
- What did you observe the defendant doing prior to and at the time of the stop?
B. License Check and Suspension
- Did you run a check of the defendant's driving privilege status?
- What did the license check reveal about the defendant's license status?
- Was the defendant's driver's license or privilege to operate a motor vehicle in Virginia suspended or revoked at the time of this stop?
- What was the reason for the suspension — was it related to a DUI offense?
C. DMV Record / Notice
- [Admit the DMV transcript as an exhibit.] Officer, I'm showing you Exhibit ___. Do you recognize this document?
- Does this document reflect the defendant's driver history and the suspension that was in effect on [date]?
- Does the DMV record show when and how the defendant was notified of this suspension?
D. Prior Convictions (Prior DOLS within 10 years)
- [Admit certified prior conviction records.] I'm showing you Exhibit ___. Are these the certified court records of the defendant's prior driving-on-suspended convictions?
- Do these records reflect that the defendant was previously convicted of driving on a DUI-related suspension within the past 10 years?
11. GDC Trial Script (Misdemeanor DOLS)
Full Misdemeanor DOLS Exam
- What is your assignment, and were you on duty on [date] in [jurisdiction]?
- What prompted your attention to the defendant's vehicle? What did you observe?
- Describe the stop — where did it occur, what was the traffic condition?
- Identify the defendant — do you see the person you stopped in court today?
- Did you run a license check during the stop? What was the result?
- Was the defendant's Virginia driver's license or privilege suspended at the time of the stop?
- Does the DMV record show what type of suspension was in effect — was it DUI-related?
- [Admit DMV transcript.] Showing you Exhibit ___: is this the DMV transcript reflecting the defendant's suspension status on [date]?
- Does this record show when and how notice of the suspension was sent to the defendant?
- At the time of the stop, what address did DMV have on file for the defendant?
- Did the defendant make any statements about knowing their license was suspended?
12. Sentencing Argument
Identify the mandatory minimum for the court — this is a non-negotiable floor that may not be suspended. For a third-offense felony, the mandatory minimum is [X] days of active incarceration. Argue: the defendant has demonstrated a pattern of ignoring the court's orders by continuing to drive despite multiple prior suspensions and convictions. The mandatory minimum exists precisely because prior misdemeanor sanctions have not deterred the conduct. Request active time at or above the mandatory minimum, continued revocation of driving privileges, and a condition that no restricted license be issued without completion of all required programs.
13. Key Cases
Brame v. Commonwealth 252 Va. 122, 476 S.E.2d 177 (1996)
binding
NO DOUBLE JEOPARDY. A judicial one-year suspension for refusing a blood or breath test, following a seven-day administrative suspension under § 46.2-391.2(A) for the same refusal, does not violate double jeopardy. Nor is there a due process violation where the defendant made no effort to subpoena the arresting officer for the § 46.2-391.2(C) review hearing — "[i]n the absence of any such effort, [he] has no standing to complain."
Ingram v. Commonwealth 29 Va. App. 759, 514 S.E.2d 792 (1999)
binding
The § 46.2-391.2 suspension is remedial, not punitive — its purpose is "maintaining safety on public roads" — so a later DUI conviction on the same incident is no double jeopardy violation. Applied where asthma prevented the defendant from producing a breath sample; the suspension still stood.
Depsky v. Commonwealth 50 Va. App. 454, 650 S.E.2d 867 (2007)
binding
Same result for the sixty-day suspension provision of § 46.2-391.2: a "remedial sanction because its purpose is to protect the public from intoxicated drivers and to reduce alcohol-related accidents." Length does not convert it into punishment.
Jasper v. Commonwealth 49 Va. App. 749, 644 S.E.2d 406 (2007)
binding
THE DMV TRANSCRIPT IS ADMISSIBLE over a Confrontation Clause objection to prove both that the licence was revoked and that the defendant had notice. Business and official records "are not testimonial 'by their nature'" — they are "a neutral repository of information", not accusatory, and do not resemble the ex parte communications that are "the principal evil at which the Confrontation Clause was directed."
Boone v. Commonwealth 63 Va. App. 383, 758 S.E.2d 72 (2014)
binding
Jasper survives Melendez-Diaz: "Melendez-Diaz does not demand a different result regarding the use of a DMV transcript as evidence at trial," because that majority "distinguished the forensic analysts' certificates from a clerk's certificate authenticating an official record." Decided under the habitual-offender statute, § 46.2-357.
Enriquez v. Commonwealth 283 Va. 511, 722 S.E.2d 252 (2012)
binding
OPERATION. Code § 46.2-100's definition of "operator" controls: anyone in actual physical control is an operator, and the position of the key in the ignition switch is not determinative. The engine need not be running. ⚠️ This sheet formerly listed "Enriquez, Va. App. (various)" for a parking-lot / public-highway proposition. That was wrong twice over — Enriquez is the Supreme Court, and it is about operation.
Sarafin v. Commonwealth Record No. 131747 (Va. Oct. 31, 2014)
binding
There is no "on a highway" requirement in § 18.2-266 — a private driveway is within it. The broader and correct version of the parking-lot proposition this sheet used to assert without a citation.
Birchfield v. North Dakota 579 U.S. 438 (2016)
binding
"[A] breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving," and "motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense."
Mitchell v. Wisconsin 588 U.S. 840 (2019) (plurality)
persuasive
⚠️ A PLURALITY, NOT A MAJORITY — four Justices; Thomas concurred in the judgment only. Where unconsciousness or stupor requires hospitalisation before a breath test is possible, officers "may almost always order a warrantless blood test". The judgment was VACATED AND REMANDED.
14. Annotated Authority
Annotated authority — research layer, not printed on the PDF
Brame v. Commonwealth 252 Va. 122, 476 S.E.2d 177, Va., 1996
The Supreme Court's answer to the double-jeopardy attack on the two-stage suspension scheme. A JUDICIAL ONE-YEAR SUSPENSION for refusing a blood or breath test, imposed after the driver has ALREADY SERVED a SEVEN-DAY ADMINISTRATIVE SUSPENSION under § 46.2-391.2(A) FOR THE SAME REFUSAL, does not violate double jeopardy. On due process: Brame complained that the arresting officer did not appear at the § 46.2-391.2(C) review hearing, but he "certainly had the opportunity to secure the officer's testimony by requesting his voluntary appearance or obtaining a subpoena" and made "NO EFFORT WHATSOEVER" — "[i]n the absence of any such effort, Brame HAS NO STANDING TO COMPLAIN."
Practical value: The whole scheme depends on this case, and both halves get used. The due process half is the one that decides most review hearings: if the defence did not subpoena the officer, the objection is gone. Note the Court's reasoning on length — Virginia's seven days is "shorter than any of the periods considered in the out-of-state cases", most of which were ninety days or more.
Ingram v. Commonwealth 29 Va. App. 759, 514 S.E.2d 792, Va. Ct. App., 1999
The § 46.2-391.2 suspension is REMEDIAL, NOT PUNITIVE — it serves "the REMEDIAL GOAL OF MAINTAINING SAFETY ON PUBLIC ROADS" — so a subsequent DUI prosecution arising out of the same incident does not violate the Double Jeopardy Clause. AND NOTE THE FACTS: Ingram did not refuse the breath test; his ASTHMA PREVENTED HIM from producing a sample, and he gave blood instead. The suspension still stood, because the statute turns on the absence of a breath result, not on culpable refusal.
Practical value: The asthma fact is the useful part. "He could not, he did not refuse" is a common argument at the review hearing and Ingram answers it directly. The remedy for a genuine inability was the statutory motion for review, which Ingram never filed.
Depsky v. Commonwealth 50 Va. App. 454, 650 S.E.2d 867, Va. Ct. App., 2007
The same conclusion for the SIXTY-DAY suspension provision of § 46.2-391.2, which applies on a second offence: it is "a REMEDIAL SANCTION because its purpose is to PROTECT THE PUBLIC FROM INTOXICATED DRIVERS AND TO REDUCE ALCOHOL-RELATED ACCIDENTS."
Practical value: Closes the obvious gap in Brame and Ingram, both of which concerned the seven-day suspension. LENGTH DOES NOT CONVERT THE SANCTION INTO PUNISHMENT, so the double-jeopardy argument does not improve on a second offence.
Tench v. Commonwealth 21 Va. App. 200, 205, 462 S.E.2d 922, Va. Ct. App., 1995
The earlier authority Depsky relies on for the REMEDIAL PURPOSE of the administrative suspension scheme.
Practical value: Worth citing with Depsky to show the remedial characterisation is not a recent gloss — it dates from the year after the scheme was enacted.
Jasper v. Commonwealth 49 Va. App. 749, 644 S.E.2d 406, Va. Ct. App., 2007
THE EVIDENTIARY CASE, AND THE ONE THIS SHEET MOST NEEDED. The DMV "Transcript of Driver History Record" is ADMISSIBLE OVER A CONFRONTATION CLAUSE OBJECTION to prove BOTH that the licence was revoked AND that the defendant had NOTICE of the revocation. Business and official records "are NOT TESTIMONIAL 'BY THEIR NATURE'": they are "NOT BY THEIR NATURE ACCUSATORY", are "a NEUTRAL REPOSITORY OF INFORMATION that reflects the objective results of a search of public records", and do not resemble ex parte communications, "the principal evil at which the Confrontation Clause was directed". That the transcript was REQUESTED BY THE COMMONWEALTH'S ATTORNEY does not change its character.
Practical value: ⚠️ THIS DIRECTLY CONTRADICTS WHAT THE SHEET USED TO SAY. A removed entry ("Plummer, Va. App. (various)") asserted that a DMV abstract alone is insufficient and certified court records are required. Jasper holds the opposite on the Confrontation Clause point. Note what the transcript in Jasper actually printed — "*Notice of Suspension/Revocation Received*" and the date and manner of notification — which is how the notice element gets proved without a witness.
Michels v. Commonwealth 47 Va. App. 461, 466, 469-70, 624 S.E.2d 675, 680, Va. Ct. App., 2006
The case Jasper builds on: certificates from the Delaware Secretary of State were "NOT TESTIMONIAL FOR TWO REASONS" — they are not accusatory and describe no criminal wrongdoing, being "a neutral repository of information", and they do not resemble ex parte communications.
Practical value: The reasoning transfers to any custodian-of-records certificate, not just DMV. Useful whenever the objection is that a public record became testimonial because a prosecutor asked for it.
Boone v. Commonwealth 63 Va. App. 383, 758 S.E.2d 72, Va. Ct. App., 2014
Jasper SURVIVES MELENDEZ-DIAZ. "[W]e conclude that MELENDEZ-DIAZ DOES NOT DEMAND A DIFFERENT RESULT regarding the use of a DMV transcript as evidence at trial," because the Melendez-Diaz majority itself "DISTINGUISHED THE FORENSIC ANALYSTS' CERTIFICATES FROM A CLERK'S CERTIFICATE AUTHENTICATING AN OFFICIAL RECORD."
Practical value: This is the citation to have ready, because Melendez-Diaz is what the defence will lead with. ⚠️ READ THE CAPTION: Boone was convicted under the HABITUAL OFFENDER statute, § 46.2-357, not § 46.2-391 — the Confrontation Clause holding is general, the offence is not.
Melendez-Diaz v. Massachusetts 557 U.S. 305, U.S., 2009
Forensic analysts' certificates are testimonial and their authors must be available for cross-examination — BUT the majority expressly DISTINGUISHED such certificates FROM A CLERK'S CERTIFICATE AUTHENTICATING AN OFFICIAL RECORD, which is the distinction that leaves the DMV transcript admissible.
Practical value: Know the limit before the defence states the rule. The same case is annotated on the CONFESSIONS sheet for its Confrontation Clause holding and its interaction with § 19.2-187.1.
Crawford v. Washington 541 U.S. 36, 50, U.S., 2004
Names what the Confrontation Clause is aimed at: EX PARTE COMMUNICATIONS ARE "THE PRINCIPAL EVIL AT WHICH THE CONFRONTATION CLAUSE WAS DIRECTED."
Practical value: The sentence that does the work in Jasper and Michels — a record that is not an ex parte communication is not the evil the Clause addresses, however inconvenient it is to the defendant.
Enriquez v. Commonwealth 283 Va. 511, 515-17, 722 S.E.2d 252, 254-55, Va., 2012
OPERATION. Code § 46.2-100's definition of "operator" is controlling — "any individual who is in ACTUAL PHYSICAL CONTROL of a vehicle is an 'operator'" — and "THE POSITION OF THE KEY IN THE IGNITION SWITCH IS NOT DETERMINATIVE." An intoxicated person seated behind the wheel with the key in the switch is operating. THE ENGINE NEED NOT BE RUNNING.
Practical value: ⚠️ TWO THINGS THIS SHEET GOT WRONG ABOUT THIS CASE. It listed "Enriquez v. Commonwealth, Va. App. (various)" for the proposition that PARKING LOTS OPEN TO THE PUBLIC ARE "PUBLIC HIGHWAYS". Enriquez is the SUPREME COURT OF VIRGINIA, not the Court of Appeals, and it decides OPERATION, not the meaning of highway. The parking-lot proposition also appeared on the dui-266 sheet attached to a different name, "Thurston v. City of Richmond", which does not exist in any database searched — see that sheet's revision notes. Sarafin states the correct and broader rule.
Sarafin v. Commonwealth Record No. 131747 (Va. Oct. 31, 2014), Va., 2014
"[W]e hold that CODE § 18.2-266 CONTAINS NO 'ON A HIGHWAY' REQUIREMENT for the operation of motor vehicles." Sarafin was asleep in the driver's seat IN HIS OWN PRIVATE DRIVEWAY with the key turned back to auxiliary power. The reasoning is textual: the section applies equally to motor vehicles, ENGINES AND TRAINS, and trains run on privately owned track.
Practical value: The correct and broader form of what the removed parking-lot entry was reaching for. The location argument is not available under § 18.2-266 at all. ⚠️ Its reporter citation could NOT be confirmed — CourtListener has no citation on record for the Supreme Court decision. Only the COURT OF APPEALS decision below is reported, at 62 Va. App. 385, 748 S.E.2d 641 (2013), and it went the OTHER WAY on this point.
Birchfield v. North Dakota 579 U.S. 438, U.S., 2016
"Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that A BREATH TEST, BUT NOT A BLOOD TEST, MAY BE ADMINISTERED AS A SEARCH INCIDENT TO A LAWFUL ARREST for drunk driving." And "MOTORISTS CANNOT BE DEEMED TO HAVE CONSENTED to submit to A BLOOD TEST ON PAIN OF COMMITTING A CRIMINAL OFFENSE."
Practical value: The second holding is the one that touches this sheet, because Virginia enforces implied consent with a refusal charge. Implied consent carries a BREATH test; it does not by itself carry a BLOOD draw.
Mitchell v. Wisconsin 588 U.S. 840, U.S. (plurality), 2019
⚠️ A PLURALITY. Justice Alito "announced the judgment of the Court and delivered an opinion" joined by only three other Justices; Justice Thomas concurred IN THE JUDGMENT ONLY. The plurality rule: where unconsciousness or stupor "requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may ALMOST ALWAYS order a warrantless blood test." The judgment was "VACATED, AND THE CASE IS REMANDED".
Practical value: ⚠️ THIS SHEET STATED IT AS "warrantless blood draw generally permitted", the same overstatement corrected on dui-266. It is not a majority, "almost always" carries an express defence rebuttal, and the Court did not uphold the draw. ⚠️ NAME COLLISION: not Mitchell v. Commonwealth, 25 Va. App. 81, 486 S.E.2d 551 (1997), which Jasper cites on an evidentiary point.
⚠️ THIS SHEET'S CASE LAW WAS REBUILT ON 2026-08-24. TEN of its twelve entries carried the placeholder "Va. App. (various)" instead of a citation, and two of those stated propositions already removed from the dui-266 sheet as fabricated. See the revision notes.