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By David Salvin January 2nd, 2007

Published in "Orange County Lawyer Magazine" January 2007

While most of us may not be crystal clear as to every issue of fact and law that comes across our desks, one of the few things that I, and others I have queried, have been reasonably sure of is when we are "driving" - as in driving a vehicle. Typically getting in a car or on a motorcycle, starting the engine and making it move under its own power fit the definition pretty well. This question, however, is not as straightforward as it may seem. Especially in the legally contorted world of driving under the influence. With an admitted agenda that has no equal in history as to any other criminal charge, the California Courts have declared their unyielding support to" legislative goals of deterring drunk driving and encouraging cooperation in chemical testing". Rice v. Pierce 203 Cal.App.3d 1460 (1988) .

In order to further these perceived "goals", the courts have taken to some rather unusual and legally tortuous analysis in order to determine what "driving" is and when refusal to take a chemical test is required.

The California Vehicle Code defines a "driver" as "a person who drives or is in actual physical control of a vehicle." (Section 305VC) "Driving" has been also defined in various ways by various courts. Most recently and prominently by the California Supreme Court in Mercer v. DMV 53 Cal.3d 753 (1991). The Mercer court held that "Based on (I) the "plain meaning" of the statutory term "drive," (ii) the use of that and related terms by our Legislature in related statutes, and (iii) the interpretation of the word "drive" and related terms in numerous decisions by our sister states, we conclude section 23152 requires proof of volitional movement of a vehicle." What was not determined, however, is whether or not "volitional movement" of the vehicle required the vehicle to move under its own power.

Section 415 of the California Vehicle Code defines a "motor vehicle" as "a vehicle which is self-propelled." Under these definitions the only distinction between a "motor vehicle" and a "vehicle" appears to be that the former is a device self-propelled, while the latter is a device propelled by its own force or by some other nonhuman force or power.

These definitions (or lack thereof) make for some unique applications, which result in some even more unique factual decisions. In a state where an apple or even a half eaten apple can be considered a "dangerous or deadly weapon" (People v. Montes (1999) 74 Cal.App.4th 1050 (1999) , and In re Gavin T. 66 Cal.App.4th 238 (1998) ) nothing surprises me.

As for "driving", the Court in People v. Jordan 75 Cal.App.3d Supp. 1 (1977) held that a person pedaling a moped without the motor was "driving" because the moped did have motor and it therefore did theoretically qualify as a "motor vehicle" even though it wasn’t actually being used as such.

California is not alone in this expansive definition of "driving". Many other state courts have made equally "expansive" rulings. In Kentucky, a person found asleep behind the wheel of a non-moving vehicle was "operating the vehicle" (Wells v. Commonwealth, 709 S.W.2d 847 (Ky. App. 1986). A vehicle stuck in the mud and disabled was being "driven" by a "motorist" in New York (People v. David "W", 83 A.D.2d 690, 442 N.Y.S.2d 278 (1981); State v. Dubany, 184 Neb. 337, 167 N.W.2d 556 (1969)). A vehicle motionless and out of gas was being "driven" by a motorist in Washington (State v. Smelter, 36 Wash.App. 439, 674 P.2d 690 (1984))

The upshot is that you never know when you will be "driving". Apparently, you can even do it in your sleep. But the interesting part comes when you are stopped for "driving" and asked to complete chemical testing which in California you are obliged to do as a "motorist". So the question : When are you required to give your consent to chemical testing and when is your refusal of such tests punishable?

California Vehicle code§ 23612(A) says " A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing. Section(B) also says "A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing. However, the rub begins further in the section, when the Legislature seemed to change its mind and wrote, "If the person is lawfully arrested for DUI. . . the person shall...give a test." So, we’ve gone from a person who is driving in the first two sub-sections over to any person who is lawfully arrested for suspicion of DUI. These may be two entirely different groups of people.

Those charged with DUI are prosecuted on several fronts and face multiple suspensions of their license and other penalties, both from the DMV and the courts. Because in California the DMV and courts are not uniform in their jurisdiction, and multiple overlaps occur, a person can be prosecuted by the DMV and win and keep their license, only to go to trial and lose. Similarly, a person could lose the DMV hearing and later go to trial and be acquitted. Most of the time this finding will overturn the DMV’s decision. However, an interesting schism has arisen. As things stand now, if a person were arrested while sitting in his or her non-moving vehicle and that person (believing he or she was not "driving") then refuses to give a chemical test, can face the suspension of his or her license for a year, two or even three. But because the vehicle code statutes which empower the DMV to suspend a driving license are different than those which empower the courts, a person can lose on the refusal issue at the DMV, go to trial, win, be acquitted of the refusal and still lose his or her license to the DMV.

How does this happen you ask? Well, CVC §23612 can (and has) been interpreted by the DMV to mean that if a person were arrested on suspicion of DUI, that person must submit to a chemical test - even if that person were later found not to be driving.

The courts, however, utilize CVC§23577 which creates an "enhancement" for the failure to complete a chemical test in connection with a DUI investigation. But an "enhancement" cannot stand without the underlying DUI conviction. Section 23577 says "If A person who is convicted of a violation of section 23153(DUI) and at the time of the arrest. . .refused . . .the chemical test. . . the court shall impose the following penalties..." So, only people otherwise convicted of DUI can be punished with a refusal under the law in any state court of California, except the DMV, which can and will punish a person without the pesky need for a conviction for actually driving under the influence.

This issue is now before the California Supreme Court. The issue as framed by the Court of Appeal in Troppman v. Borucki (2005) 126 Cal.App.4th 755 is can a person be punished by the DMV for refusing a chemical test in connection with a DUI when there is no evidence of that person actually driving. The court’s answer in Troppman was - yes. The DMV doesn’t actually need to find any "driving" in order to punish a person for not taking a chemical test- a chemical test to determine if you were "driving" under the influence. Why put the cart before the horse when you don’t need the horse at all?

The Fifth Appellate District in Jackson v. Pierce 224 Cal.App.3d 964 (1990) and Medina v. Department of Motor Vehicles l88 Cal.App.3d 744, 747 (1987) interpreted the statute on its plain meaning. The court held that the statute in the first two sections refers to "drivers" and "one who drives" therefore, only those actually driving logically should be presumed to have given their consent for testing.
However, the Sixth Appellate District in Machado v. Department of Motor Vehicles 10 Cal.App.4th 1687 (1992) and First District Third Division in Troppman chose to look at the later language in the statue referring to "one who is lawfully arrested". The Court in Troppman, in citing Rice (supra) reasoned " with regard to the legislative goals of deterring drunk driving and encouraging cooperation in chemical testing, [the Rice court observed:] "It would serve no useful policy to permit an intoxicated person suspected of driving a vehicle to refuse to take a chemical test for alcoholic content. To require an additional finding that the arrestee was actually driving, would undermine the important goals of cooperation and deterrence."

The contorted logic used by the courts in Troppman and Rice coupled with the bent of the legislature is considerable. All persons who use California roads as motorists implicitly consent to taking certain chemical tests. These chemical tests are designed to determine whether or not you were "driving" under the influence. Those who do refuse will lose their license for at least one year either through the DMV, the courts or both. However, even if you’re not actually driving, the officers still have reasonable suspicion you may be under the influence so as to allow them to investigate the possibility of your driving under the influence. Because after all, since you were suspected of driving - you’ve already given your consent to give the testing- right? The Rice court held "A lawful arrest requires only reasonable cause to believe a person was driving, not proof the arrestee was actually driving." Rice 203 Cal.App.3d at p. 1465. So while a person not driving can legally be arrested and brought to trial (at his considerable expense), the good news is he or she may be acquitted because he or she was not driving. Further, if he or she chose not to cooperate with chemical testing, the refusal enhancement will also fail because you can’t have an enhancement without the underlying charge. But, even with the same lack of evidence of driving, the DMV may still take that person’s license to drive for a year or more. The court in Rice reasoned "When a person has been lawfully arrested and the peace officer has reasonable cause to believe the person was driving under the influence of drugs or alcohol, imposing an additional requirement that the DMV prove actual driving as a prerequisite to license suspension (i.e., the enforcement "stick" of section 13353) would undermine the policy goals of encouraging cooperation in testing and deterring drunk driving." Rice, supra, 203 Cal.App.3d at p. 1465.

The holdings in Troppman and Rice make the courts’ bias and motivation clear. Enforcement and punishment first, never mind the inconvenient truths (or lack of evidence.) The California Supreme Court’s agreeing to hear the Troppman decision will end the schism which has developed in the appellate courts, but may be yet another nail in the coffin for those who believe that constitutional rights and due process apply to everyone - even to those accused of drunk driving. So be careful out there, you never know when you may wake up and find yourself "driving".




To Review Mr. Salvins article in the yearly index for OC Lawyer Magazine click here.


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