Virginia Lawyers Weekly VA Lawyers Weekly
Nissan key fob
A key fob that allowed the car to be operated without an actual key inserted in an ignition switch has prompted the latest conviction in Virginia’s series of “sleeping driver” cases.
A Fairfax County circuit judge convicted the operator who was found intoxicated in his car with the engine off but with some internal dash lights on. The judge, however, rejected the prosecutor’s contention that the driver’s mere presence in the driver’s seat, without more, was sufficient for conviction.
That last ruling in Commonwealth v. Lopez (VLW 015-8-082) was “a bit of a silver lining for defendants,” according to the driver’s attorney.
Hansel Lopez appealed his general district DUI conviction to circuit court. His lawyer, David Bernhard, filed a “motion for acquittal” which was heard without a jury on Sept. 4 by Fairfax Circuit Judge Robert J. Smith.
Lopez was found by a Fairfax County police officer in the driver’s seat of a Nissan Murano on March 23, 2014. The car was backed into a handicapped parking spot at a restaurant, according to the court’s opinion.
The car’s engine was shut off, but there were “some lights emanating from the radio panel,” the judge said. The driver appeared to be sleeping. He had a set of keys in his right hand, including an electric vehicle key fob.
Lopez told the officer he was waiting for a friend. He acknowledged having three or four beers at a restaurant.
Lopez’ BAC was measured at .18 by his account and at .24 according to the prosecution.
The Murano has a push-button ignition that requires the key fob to be present. Pressing the button on the fob one time activates electrical accessories in the car when the engine is not running.
Pushing the fob button twice turns on the ignition system. The car then can be started by pressing the brake and pushing the ignition switch.
Vehicle ‘operation’
The case turned on whether Lopez was “operating” the vehicle, Smith said.
Several Virginia cases have affirmed convictions for driving while intoxicated where defendants were found in parked vehicles with keys in the ignitions.
“The outcomes of these cases often turn on whether the vehicle is capable of being operated at the time that the driver is found,” Smith said.
The prosecutor asserted that a 2012 Virginia Supreme Court case required nothing more than the defendant’s physical presence in the driver’s seat for a conviction. Smith rejected that interpretation. The case requires “actual physical control” of the vehicle, the judge said.
That control can be established by the use of auxiliary power, such as the radio or “internal electrical capability,” Smith said.
Lopez was found in the car with lights showing on the radio panel, “suggesting the fob was turned to the ‘ACC’ position – like having the key in a traditional ignition turned backward,” Smith said.
That evidence established “actual physical control,” the judge ruled.
Smith rejected the suggestion that the state failed to prove that the key fob actually belonged to the Murano vehicle.
Smith scheduled a date for sentencing.
Bernhard said he did not anticipate an appeal because Lopez was not a “pure key fob case,” where there is nothing more than just the defendant’s presence.
Bernhard said defense lawyers have been “musing” about various fob-in-the-pocket scenarios yet to be tested in court, such as standing next to a car, opening a door, loading something into the trunk, or sleeping in the car.
Smith’s opinion seems to require more for a conviction, Bernhard said. Manipulating the key fob or engaging electrical accessories would trigger exposure, however, Bernhard said.
