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.