Last month I wrote a post on the topic of out-of-state priors. I mentioned that in California, for someone to be charged with driving under the influence, the suspect must have actually and voluntarily driven a vehicle.
The California standard is higher than other state such as Texas, which only requires that a person is readily capable of operating a vehicle while being intoxicated. Earlier this month a Corpus Christi man was arrested for DWI, which is what a DUI is called in Texas, when he was found sleeping in his vehicle with an open beer can in the cup holder and the engine running. Texas is an example of a “dominion and control” state, which requires that a person merely have dominion and control over a vehicle while intoxicated in order to be charged with driving under the influence.
The California Vehicle Code does not define “driving.” However, it does define “driver” as “a person who drives or is in actual physical control of a vehicle.” The “physical control” element of this definition seems to suggest a standard similar to “dominion and control.”
After much debate and inconsistency in California lower courts on the issue, the California Supreme Court seemed to set the standard in Mercer v. Department of Motor Vehicles. It stated, “In everyday usage the phrase ‘to drive a vehicle’ is understood as requiring evidence of volitional movement of a vehicle. Any doubt about our understanding of the word ‘drive’ is dispelled by 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.” This holding, however, was limited to the context DMV license suspensions for refusals.
Although the Court has yet to set a definitive standard on the issue within the context of driving under the influence charges, case law seems suggest that many California courts are applying the standard set in Mercer v. Department of Motor Vehicles to driving under the influence charges. Thus, the standard has indirectly become: volitional movement of a vehicle, even slight, that may be proved by circumstantial evidence.