California’s Driving Requirement


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.

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3 Responses to California’s Driving Requirement

  1. Brandon Smith says:

    Hello I just got arrested 7 hours ago for dui. I had an argument with my girlfriend and decided to leave to let things cool down. I drove a block and a half and parked. I opened up the two beers I had with me that I brought, so she wouldn’t get any more drunk, then she already was. After drinking both I fell asleep, in the drivers seat, with my keys on the floor of the car, not the ignition. I woke up to two police officers at my window. I opened the car door because like I said my keys were on the floor and I couldn’t roll the window down and they seen the beer cans and conducted a field sobriety test which I failed and now here I am with a dui even though I was not driving, nor was I in control of the car because the keys were no where near the ignition. I never intended to drive it until I wasn’t drunk basically I was going to walk back to my girlfriends and pick up my car in the morning but I got arrested before I could do anything. Please help.

    • Christoper Taylor says:

      Mr. Smith, you have a very interesting set of facts. Let me explain California law as it relates to your specific situation…

      California law requires “driving” as part of the crime of “Driving Under the Influence” or “Driving with a BAC of .08% or more”. Some states merely require “operating” the vehicle, which does not actually require any driving to be guilty of the offense. In California, “driving” requires some “volitional movement of the vehicle”, which means that you must have intentionally moved the vehicle some distance in order to be guilty of the crime. Obviously, the prosecutor must prove “driving” in addition to the “impairment” and/or blood alcohol level. Proof of driving does not require the police to actually observe the movement. In many cases, the surrounding circumstances (or “circumstantial evidence”) in combination with statements made to the police may be sufficient to prove driving had occurred. However, you must remember that they must not only prove the driving, but that the driving occurred at the time of the “impairment” or sufficient BAC.

      In your case, the prosecutor may have a difficult time proving driving and the BAC at the time of driving! These are two of the best defenses in DUI cases because they are not directly contesting the BAC number. Rather, the defense is focused on the lack of proof with regards to any driving after alcohol has been consumed. In other words, you are saying that you were “the responsible driver” and chose not to drive after consuming alcohol. Since the prosecutor has no “driving pattern” to prove that you were impaired at the time of driving, and as they will likely have trouble trying to prove what your exact BAC was at the time you drove, any criminal charges alleged relating to DUI may be difficult to prove. I would recommend that you obtain an experienced and quality attorney in order to defend you! Good luck.

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