Criminal- Driving while DUI conviction is vacated

Where the defendant was convicted of driving a motor vehicle while under the influence of alcohol, after a police officer found him drunk in his vehicle in a hotel parking lot, the conviction was vacated. There was no evidence showing he drove while intoxicated.

 Background                              

The circuit court found Billy Fernandes Ray guilty of driving a motor vehicle while under the influence of alcohol, third offense within ten years; driving a motor vehicle while license revoked for a prior DUI conviction and while under the influence of alcohol and driving a motor vehicle while deprived of the right to do so for a DUI offense.

Virginia Code § 18.2-266

Code § 18.2-266 makes it “unlawful for any person to drive or operate any motor vehicle . . . while such person is under the influence of alcohol.” The statute requires the Commonwealth prove that a defendant “drive or operate [a] motor vehicle” while under the influence. Ray argues that no rational factfinder could have found these elements of Code § 18.2-266 beyond a reasonable doubt because there was no proof in the record that Ray operated the vehicle while he was actively intoxicated. This court agrees.

The Commonwealth hangs its hat on the fact that Ray had unopened beer cans in his backseat and smelled of alcohol. However, the question is whether Ray operated his vehicle while intoxicated. While being in the driver’s seat is sufficient to support a conviction if the vehicle is running or its electrical equipment is on, Ray’s vehicle was completely off.

Deputy Clark acknowledged that Ray was “legally parked,” backed into a parking space. The engine was not running. There is no evidence that the hood of his vehicle was hot. The electrical equipment was not engaged. His headlights were off. Ray was asleep with his shoes off when the deputies approached him.

And it is unclear from the record when he arrived in the Travel Lodge parking lot. The circuit court found that there was “no real evidence about how long it was” before the Be On the Lookout, or BOLO, was issued and the domestic situation occurred and found, as a matter of fact, that the Commonwealth had failed to establish “when [Ray] was operating a motor vehicle.”

Ray suggested as a reasonable hypothesis of innocence that he became intoxicated only after he arrived at the Travel Lodge parking lot. Both parties concede that Ray was drunk when Clark approached him. However, the record does not establish when Ray became intoxicated or whether Ray drove his vehicle after he became intoxicated. While Ray admitted to Clark that he drove himself to the Travel Lodge at some point that same day, the court found no evidence in the record establishing what time he drove there in relation to the time that he drank alcohol.

Police did not see Ray driving the car. Neither did any eyewitnesses. He had done nothing to suggest he was driving under the influence. For instance, he was not parked erratically, and none of the vehicle’s doors were opened or otherwise suspiciously situated. In fact, the only reason officers knew to investigate Ray’s Nissan Maxima, which was otherwise inconspicuously parked in the motel parking lot, is because of the BOLO describing it—not because of any erratic behavior by Ray. And while the circuit court found, as a matter of fact, that it took deputies 15 minutes after the BOLO was issued to locate Ray’s Nissan Maxima in the parking lot, the record does not establish how much time elapsed between the 911 dispatch call and the BOLO being published.

Without any showing that the car had been recently driven, the record does not provide sufficient evidence to show that Ray was operating his vehicle while intoxicated. Therefore, there was insufficient evidence to convict Ray.

Virginia Code § 46.2-391

Code §§ 46.2-391(A) and (B) allows for the revocation of a person’s license if they have been convicted for two or more DUI offenses. Because the Commonwealth failed to prove beyond a reasonable doubt that Ray operated his vehicle while he was intoxicated, it also failed to prove all the elements of Code § 46.2-391. Therefore, Ray’s conviction under Code § 46.2-391 was plainly wrong and without evidence to support it.

Virginia Code § 18.2-272

Code § 18.2-272(A)(i) makes it a misdemeanor to operate a vehicle on “any highway” after a defendant’s license has been revoked due to a subsequent violation of Code § 18.2-266. Ray does not contest his prior DUI convictions nor the fact that he drove himself to the Travel Lodge sometime that same day. Therefore, Ray’s argument challenging his misdemeanor conviction under Code § 18.2-272(A)(i) treads no water.

Affirmed in part and reversed in part.

Ray v. Commonwealth, Record No. 1815-24-3, April 21, 2026. CAV (unpublished opinion) (Causey). From the Circuit Court of Allegheny County (Stein). James V. Doss, III, for appellant. Melanie D. Edge, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee. VLW 026-7-160. 15 pp.

Full-Text Opinion

VLW 026-7-160
Virginia Lawyers Weekly