Sarafin v. Commonwealth and the Meaning of Operation Under Va. Code 18.2-266

An issue that sometimes arises in DUI cases is whether the defendant was “operating” the vehicle. Simply put, the idea is that to be convicted of a DUI offense in Virginia, the Commonwealth is required to prove beyond a reasonable doubt as one of the elements of the charge that the defendant was operating or driving the vehicle within the meaning of Va. Code 18.2-266.

A judicial interpretation of the meaning of “operating” was examined with the Virginia Court of Appeals decision in Sarafin v. Commonwealth, 748 S.E.2d 641 (Va. Ct. App. 2013). The case made it to the Virginia Supreme Court which affirmed the Court of Appeals ruling in a landmark ruling that some have called a rejection of half a century’s worth of case law.

In Sarafin, the defendant was arrested on suspicion of DUI in his own driveway in the private community in which he lived. He was found asleep in his car with the keys in the ignition in a backwards position to activate the vehicle’s auxiliary power. The officer who noticed him suspected he was drunk, knocked on his window to wake him up, ordered him out of his vehicle, and administered field sobriety tests and a Preliminary Breath Test. Sarafin was then arrested under Virginia Code 18.2-266 on suspicion of DUI.  Sarafin argued at his trial that his actions did not constitute “operation”, and argued that the statute required that the vehicle be located on a public highway as a requirement for a conviction under 18.2-266 .  On appeal, the Virginia Court of Appeals rejected his interpretation of the statute, found no such requirement in the statute, and affirmed the trial court conviction.

The court reasoned that the plain language used in §18.2-266 did not require that the operation of the vehicle be on a public highway, and that the General Assembly only used the language regarding public highways with regards to mopeds. The Supreme Court also noted that the legislature specifically included a requirement of operation on a public highway with regards to the implied consent law, yet did not include that in the DUI statute. Lastly, the court in Sarafin noted that the statute applied to engines and trains, both of which run on privately owned railroad tracks and thus Sarafin’s theory would require the court to read trains out of the statute, an act that would force the court to “usurp the legislative function of the General Assembly.”

Sarafin provides us with a definition of operation that may surprise members of the general public. When a person imagines an individual operating a motor vehicle, an image is conjured of an individual strapped in their car on a street or highway, with the engine running and the vehicle actually traversing some amount of distance. According to the Supreme Court in Virginia however, the jury instructions given in Sarafin’s case in the Circuit Court were adequate, specifically that “operating a motor vehicle means driving the vehicle from one place to another or starting the engine or manipulating the electrical or mechanical equipment of the vehicle without actually putting the vehicle in motion or engaging the machinery of the vehicle which alone or in sequence will activate the motive power of the vehicle.” [emphasis added] Sarafin, 748 S.E.2d 641 (2013).

The dissent, however, argued that the public highway element was still a key part of the definition of operation since the court had previously relied on the definition of operation in Va. Code § 46.2-100 which had always required the vehicle to be on a public highway. Justice McClanahan and Justice Kinser also joined the dissent, noting that since 1964 there has always been an “on the highway” requirement to operation in the DUI statute. The dissent argued that taking away the public highway element undermined the meaning of actual physical control that the court uses to define operation earlier in their opinion, a definition originally derived from the motor vehicle code. The dissent argued that by incorporating the “actual physical control” language of § 46.2-100 but then ignoring the public highway requirement, the court’s position was inexplicable since it had derived the definition from that code section in the past. Id.

Sarafin has other significance as well. In this case, the defendant’s vehicle engine was not turned on. The keys were in the ignition, however, and they were pulled in a back position. The court found that this was sufficient to find “operation” since he had activated the sequence of events that would activate the motive power.

So what does this mean for defense attorneys and their clients? The case is instructive in that it shows the extent to which an individual can never be too cautious when it comes to DUI in Virginia. Sarafin demonstrates that even sleeping in your own vehicle in your driveway, with the keys in the ignition but the engine not running, can result in a DUI conviction. DUI’s can have catastrophic consequences on a person’s life, employment, and they are a very serious crime.

It may be troubling to some how the courts have interpreted so broadly the meaning of “operation” under the statute. Perhaps it’s an indicator of a tougher stance that courts are trying to take against drunk driving, but it may cause controversy among those who think that the court, in taking such a radical departure from decades of case law, is going too far.

But for defense attorneys, Sarafin presents another hurdle in that it requires us to focus on making sure the Commonwealth proves actual intoxication. The harder it becomes to challenge one of the elements of the offense, the more defense attorneys will be required to find faults in the scientific evidence that is usually the basis for many convictions of DUI in Virginia.