How Does California DUI Law Define “Driving”?

California laws regarding driving under the influence have become increasingly strict and punitive. To prove that a person is guilty of DUI in California, the prosecution must prove that the driver drove a vehicle and that he was under the influence of alcohol or drugs when driving. An Orange County driving under the influence attorney can help a driver fight back against this type of charge.

The law makes it pretty clear what constitutes "under the influence", but what about "driving" under the influence? The law defines driver and driving as follows: "A driver is a person who drives or is in actual physical control of a vehicle; and "A person drives a vehicle when he or she intentionally causes it to move by exercising actual physical control over it. The person must cause the vehicle to move, but the movement may be slight."

As an example, let's look at a situation where a man is found slumped over and unresponsive in his car, the car legally parked and the engine turned off. Will that person be found guilty of driving under the influence as it applies to Vehicle Code Section 23152(a) and 23152(b)?

In the well-established case of Mercer v. Department of Motor Vehicles, the Supreme Court upheld "decades of case law" holding that the word "drive" when used in a drunk driving statute, requires evidence of a defendant's volitional movement of a vehicle. They further go on to say that the everyday usage of the phrase "to drive a vehicle," is understood to mean movement of a vehicle.

However, there are exceptions, as a knowledgeable driving under the influence attorney in Orange County would be aware. If an intoxicated person is stopped near or at an accident scene, or when a vehicle is found protruding into the street. Further, if the driver is seen driving by witnesses prior to being stopped. In these situations, the officer has reasonable cause to believe that the occupant of the stopped car was driving while intoxicated and can then be arrested. There are even cases where the courts have upheld the DUI arrest of persons who have left their vehicle and entered a building (even their own home) shortly after it was reported that the person was observed driving in an erratic manner or, for example, crashed into an object.

In the Mercer case, the Superior court issued a writ of mandate directing the Department of Motor Vehicles to set aside its order revoking Mercer's driving privilege. The Superior Court held that Mercer had not been lawfully arrested because Mercer was legally parked next to a curb and the arresting officer had not observed volitional movement of the vehicle. Several Courts have held that observed volitional movement of a vehicle is required before a person's driving privilege may be suspended or revoked.

Further in the Mercer case, the DMV appealed the Superior Court's order and the Court of Appeal reversed and directed the Superior Court to reinstate the revocation order. The Supreme Court then granted review and upheld the Superior Court's order for Writ of Mandate, directing the DMV to once again set aside it's order revoking Mercer's driving privilege.

Anyone who has been arrested for driving under the influence should seek immediate assistance from an experienced Orange County driving under the influence lawyer who also has experience in dealing with the Department of Motor Vehicles.

Police must follow procedures when detaining, questioning and arresting someone on suspicion of driving under the influence. It is the job of a criminal defense attorney to determine whether the driver was lawfully arrested and whether the prosecution can bring a valid case against his client. There are numerous issues to review, many of which I have covered elsewhere in this website. Should you have further questions, please call me to discuss them with a driving under the influence lawyer in Orange County over the telephone or in person.

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Anyone who is arrested should contact an experienced Orange County DUI Criminal Defense Attorney to determine whether or not their Fourth Amendment rights against unreasonable searches and seizures, were violated.