California Penal Code § 836(a)(1) authorizes a warrantless arrest for a misdemeanor where it is committed in the officer’s presence. “Presence” requires volitional movement of the vehicle perceived by the senses of the arresting officer. Mercer v. DMV (1991) 53 C3d 753.

CVC § 40030.5 further authorizes a warrantless arrest for a misdemeanor drunk driving offense not committed in the officer’s presence, as follows:

In addition to the authority to make an arrest without a warrant pursuant to paragraph (1) of subdivision (a) of §836 of the Penal Code, a peace officer may, without a warrant, arrest a person when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug when any of the following exists:

• (a)  The person is involved in a traffic accident.
• (b)  The person is observed in or about a vehicle that is obstructing a roadway.
• (c)  The person will not be apprehended unless immediately arrested.
• (d)  The person may cause injury to himself or herself or damage property unless immediately arrested.
• (e)  The person may destroy or conceal evidence of the crime unless immediately arrested.

 The act of driving for purposes of the drunk driving statutes means “volitional movement” of the vehicle. Mercer v. DMV (1991) 53 C3d 753. In Mercer, the California Supreme Court contrasted the term “drive,” commonly understood to require “volitional movement” of the vehicle, with the term “driver” defined in CVC § 305 as one who is either driving or in actual physical control. The court pointed out that the phrase “actual physical control” does not appear anywhere in the drunk driving offense statutes. Further, the court noted that since “driver” is defined as one who drives or is in actual physical control, the two terms (“driver” versus “actual physical control”) must have different meanings. Construing these statutes strictly, rather than broadly, as is required by Keeler v. Superior Court of Amador County (1970) 2 C3d 619, 631, the court held that mere actual physical control is not enough to constitute driving. Thus, “drive” for the purpose of the drunk driving statutes, requires actual “volitional movement” of the vehicle. The Mercer Court stated that: “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.” Id., at 410. 

Mercer further noted the following regarding the distinction between the terms “drive” and “operate” in Footnote 8 of its decision. Accord, Thomas v. State (1976) 277, Md. 314, 353 A2.d 256:

The term ‘driving’ is encompassed within the term ‘operating’; but the reverse is not necessarily so. One may not drive a vehicle without operating it; but one may operate the engine or devices of a vehicle without driving it. Otherwise stated: while all driving is necessarily operation of a motor vehicle, not all operation is necessarily driving. Id., 353 A.2d at p. 259, quoting McDuell v. State (Del.1976) 231 A.2d 265, 267.) See also, e.g., Williams v. State (1965) 111 Ga.App. 588, 142 S.E.2d 409, 411 (“[T]he offense of operating an automobile while under the influence of intoxicants can be committed without driving it, but the offense of driving while under the influence can not be committed without operating the car.”; Jacobson v. State (Alaska 1976) 551 P.2d 935, 937; Gallagher v. Commonwealth (1964) 205 Va. 666, 139 S.E.2d 37, 39; Bradam v. State (1950) 191 Tenn. 626, 235 S.W.2d 801, 802-803. [Emphasis added.]

The Mercer decision has been overwhelmingly supported by its progeny. In Draeger v. Reed (App. 3 Dist. 1999) 69 Cal.App.4th 1511, the court held that “for purposes of drunk driving statutes, the phrase, ‘to drive a vehicle’ is understood as requiring evidence of volitional movement of a vehicle.” Further, in People v. Lively, (App. 6 Dist. 1992) 10 Cal.App.4th 1364, review denied, the court held that “‘driving,’ for purposes of misdemeanor ‘drunk driving’ means any volitional movement of a vehicle.”

With respect to the “driving” element of the crime of driving under the influence, even slight movement of the vehicle, so long as it is volitional, of course, constitutes direct evidence that the vehicle was being driven. People v. Garcia (Super. 1989) 214 Cal.App.3d Supp. 1, Thus, while a police officer may not make a “lawful arrest” for “drunk driving” if the arrestee’s vehicle is lawfully parked and the officer has not observed the vehicle move pursuant to Mercer, an officer’s testimony that the arrestee’s vehicle rolled 15-to-20 feet in his presence was sufficient evidence that the arrestee drove the vehicle within the meaning of the drunk driving statutes pursuant to Garcia. Moreover, pursuant to People v. Wilson (Super. 1985) 176 Cal.App.3d Supp. 1, there was sufficient evidence to show that the arrestee had been “driving,” and that he had been intoxicated at the time of driving, when he was seen sitting in the vehicle behind wheel with the engine running and the lights on when police found him approximately one-half mile from the nearest on-ramp from the freeway.  Thus, circumstantial evidence can be used to establish that a person was driving.

Also be aware that an anonymous and uncorroborated telephone tip about a potential drunk driver may be enough to trigger the “public safety” exception to the Fourth Amendment, even where the police do not independently observe anything unusual about the motorist or his driving prior to the enforcement stop. People v. Wells.  In Wells, the dispatcher broadcasted “a possibly intoxicated driver ‘weaving all over the roadway,’” and described the vehicle as an “80’s model blue van traveling northbound on Highway 99 at Airport Drive.” The officer, who was heading southbound 3 to 4 miles away from that location when he got the call, positioned himself on the shoulder of northbound Highway 99. “Two or three minutes” later he saw a blue van traveling approximately 50 miles per hour. He made an enforcement stop without independently observing any unusual, suspicious, or illegal driving.  Absolutely frightening.

It is because of these issues that you need a DUI Specialist to defend you in a driving under the influence (DUI) case. please contact the Law Office of Barry T. Simons by telephone at: 949-497-1729.  You may also send a confidential contact form via email to: info@simonslaw.com.  The form can be found on our website: www.duilawyerorangecounty.com.  The call could mean the difference between your being convicted of a DUI or being acquitted of it.

For information on California DUI Laws and representation for driving under the influence, please contact our website at: www.duilawyerorangecounty.com.

Summary of New Law Changes for 2009

Just before the New Year, the Law Office of Barry T. Simons wants to provide everyone with a few new law changes that go into effect in 2009.  Some have been addressed in previous posts, but they are now being provided in a summary fashion for quick referencing:

1.     No-Text Law—Texting While Driving (Senate Bill 65)

This new law makes it an infraction to write, send, or read text based communications on an electronic wireless communication device, including emails, while driving a motor vehicle. 

Previously this was only illegal for those under 18-years of age with the passage of the hands-free law change in July of 2008; however, it has now been extended to all drivers.

2.     DUI Probationers Zero Tolerance Law (Assembly Bill 1165)

This new law prohibits a person who has been convicted of driving under the influence and is on probation from driving a motor vehicle with a blood or breath alcohol level of 0.01% or more as measured by a preliminary alcohol screening test or other chemical test.  If the driver refuses to submit to, or fails to complete the test, or if the person is found to have been driving with a blood or breath alcohol level of 0.01% or greater, the person will be subject to a license suspension by the California Department of Motor Vehicles’ and issued a citation.  Additionally, the driver’s vehicle is subject to impound.

3.     Alcohol Related Reckless Driving (Assembly Bill 2802)

This new law requires a court to order a person convicted of an alcohol-related reckless driving, (commonly referred to as a wet reckless), to attend a drunk driving alcohol program of at least nine (9) months in length if that person has a prior driving under the influence or alcohol related reckless driving conviction within the last ten (10) years.  This law change can be found under Vehicle Code § 23103.5(f)(1) and § 23103.5(f)(2).

4.     Ignition Interlock Device (IID) (Senate Bill 1190)

This new law allows courts to give additional consideration for the installation of an ignition interlock device (IID) to those offenders who have a blood alcohol concentration of 0.15% or greater.  This new law reduces the blood alcohol level from 0.20% or greater to 0.15% or greater to trigger the requirement.

5.     Ignition Interlock Device (IID) (Senate Bill 1388)

This new law allows the California Department of Motor Vehicles to require any driver convicted of driving on a suspended license due to a prior driving under the influence (DUI) conviction to install an ignition interlock device (IID) in any vehicle the offender owns or operates.  This is an expansion on the previous law that required courts to impose this condition on those drivers convicted of driving on a suspended license due to a prior driving under the influence (DUI) conviction to install an ignition interlock device (IID) in any vehicle the offender owns or operates because now the authority rests solely with the California Department of Motor Vehicles and is required at the time the Department receives notification of the conviction.

No-Texting Law Goes Into Effect January 1, 2009       

The California Legislature is routinely passing laws to generate additional revenue.  This new law change is just another example of it.

First came the Hand-Held Wireless Telephone: Prohibited Use Statute (Vehicle Code 23123), which made it unlawful for a person over 18 years of age to drive while using a wireless telephone unless that telephone was specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving.  Drivers under the age of 18 were prohibited from using any electronic devices while driving.   This law went in to effect on July 1, 2008; but it contained one minor loophole: it did not prohibit text messaging.  As a result, the California Department of Motor Vehicles reports that another new law will go into effect to close the loophole: the no-text law.   

The new law, starting January 1, 2009, prohibits writing, sending, or reading a text-based communication while driving for all drivers in California.  This law will apply to electronic wireless communication devices used to manually communicate with any person using text-based communication, including, but not limited to, communications referred to as a text message, instant message, or electronic mail.  Thus, no texting while driving!

To date, California Connecticut, New York, New Jersey and Washington are the only states that ban all drivers from using hand-held phones. The New Jersey and Washington state laws also prohibit text messaging.  Alaska and Minnesota recently approved their own bans on text messaging. 

Now the inclusion of such a seemingly trivial law change in a DUI Defense Specialist’s blog may initially seem odd to you; but the purpose of apprising readers of these new law changes is to advise drivers that conducting either of these prohibited acts may provide police officers with a reason to pull you over.  Thus if you have been driving after consuming alcohol, and you are pulled over for either one of these new law violations, regardless of how well you may have been driving before the officer allegedly observed you violating either one of these new law violations, you could be stopped, detained and questioned regarding whether the alcohol you consumed affected your ability to safely operate a motor vehicle in violation of the California Drunk Driving Laws.  Thereafter you could be arrested and charged with driving under the influence and need the assistance of a DUI Specialist to determine whether or not what the officer allegedly observed constituted an actual violation of the new laws.