The ‘No Driving’ Defense
Here are the answers to some commonly asked questions relating to the No Driving Defense:
What if I wasn’t driving when I was pulled over? If I was driving, what if the police did not see me driving?
In order to be convicted of DUI, California Vehicle Code Sections 23152 and 23153 both require that you actually have been driving a motor vehicle while under the influence. But what constitutes driving according to California law?
In most cases this is not even an issue. The arresting officer usually observes the DUI suspect driving a moving automobile. This element is often conceded and there is no contention about whether or not the defendant was driving.
However, on occasion, the arresting officer has not actually seen the conduct that, irrefutably, constitutes “driving.” Instead, the officer perhaps found the DUI suspect asleep on the front seat of a car which is lawfully parked, keys in the ignition, car running with the transmission set to “park” or “neutral”.
The California Supreme Court drew a contrast between the term “drive,” normally understood to require there have been “volitional movement of the vehicle,” and the term “driver,” which CVC §305 defines as someone who is “either driving or in actual physical control.” The Court said that the phrase “actual physical control” does not appear anywhere in the drunk driving offense statutes. Additionally, the Court noted that because “driver” is defined as a person who drives or is in actual physical control, the two terms (drive vs. actual physical control) must have different meanings. Mercer v. DMV (1991) 53 Cal.3d 753,
Interpreting the law strictly instead of broadly, the Court held that being in mere actual physical control of a vehicle is not enough to constitute “driving.” Therefore, for purposes of the California drunk driving statutes, driving actually requires that the person exercise volitional movement of the vehicle.
Mind you, whether you were actually driving and whether there was direct proof of your driving are two separate issues. The prosecutor can establish that you were driving “circumstantially,” in other words, by inference from whether you were observed exiting the driver’s side of your vehicle, the warmth of your engine and other tell-tale signs.
On the other hand, merely being found behind the wheel of a vehicle is not surefire proof that you were driving if the circumstances can show that you had pulled over to rest, your vehicle was off, you had been sleeping, or other facts indicating that you were in your car but had not been exercising “volitional movement of the vehicle.” Based on the circumstances of your stop, we may be able to successfully advance this argument and have your case dismissed before or at trial.
I was asleep in my car when I was pulled over for DUI. For purposes of the California DUI laws, was I driving?
In a case known as Music v. DMV, the defendant was asleep behind the wheel of his car. The engine was running but the transmission was not engaged. The arresting officer approached his car. He was awakened by the officer. The officer asked the defendant to shut off his engine. The defendant “fumbled around trying to grab and find the keys and turn [the vehicle] off and instead of doing that he reached and started messing with the gear shift.” However, “he did not even manage to put the truck in gear.” Based on these facts, the court found that the defendant’s acts did not amount to driving. Why? Because the vehicle never moved. Music v. DMV (1990) 221 Cal.App.3d 841.
However, on very similar facts, the Mercer court (from the case above) found that the defendant was driving where the defendant had not been ordered to shut off the engine when he “started pulling gears [on the manual transmission] as if … in his mind, he was already driving or about ready to drive.” The lower court’s decision, later overturned by the Supreme Court in Mercer, found driving even though there was no vehicle movement.
If you were asleep in your vehicle at the time you were parked, Ernenwein & Johnson, Torrance DUI Defense Lawyers (South Bay DUI Defense Lawyers, Los Angeles DUI Defense Lawyers) will explore the circumstances of your stop. Were your keys in the ignition or were they elsewhere such as your glove compartment, back seat, your purse, or your pant pocket? Was the transmission in gear or was it in the “park” position? Were you, in fact, asleep, or in the process of preparing to take a nap to “dry out” but, nevertheless, driving? Our team will study and examine the facts of your case. The facts may allow us to argue that you were not driving at the time, that you were asleep, and allow us to successfully resolve your case prior to trial.
I was driving drunk on a parking lot (or other non-public property). Is that the same as driving drunk on a highway?
Yes. Drunk driving is illegal on private property as it is on public highways (California Vehicle Code Section 23100; People v. Malvitz (1992) 11 Cal.App.4th Supp. 9). However, the definition of “highway” is not wholly meaningless in DUI cases. This is because the definition of “vehicle” depends on the definition of “highway.” For example, riding an animal is subject to the Vehicle Code only if you do so on a highway.
Is horseback riding while intoxicated DUI?
Riding a horse or other animal on a highway may indeed be driving a vehicle for purposes of the traffic laws, including the drunk driving statutes (California Vehicle Code Section 21050; and footnote 3 in People v. Fong (1993) 17 Cal.App.4th Supp. 1).
I was riding a bicycle while intoxicated. Can I be charged with driving under the influence?
No. A bicycle without a motor is not considered a vehicle for DUI purposes. However, do note that riding a bicycle while under the influence of alcohol is a separate offense. (See California Vehicle Code Section 21200.5.) Bicycles with motors are usually considered vehicles for purposes of California Vehicle Code Section 670.
I was riding a moped while intoxicated. Is that DUI?
A “motorized scooter” is a vehicle subject to all traffic laws, including DUI laws. However, there is already a particular statute that prohibits driving a motorized scooter while under the influence of alcohol. (California Vehicle Code Section 21221.5.)
Other vehicles for DUI purposes can include golf carts, low-speed vehicles, tractors, and bulldozers. (Yet an airplane not a vehicle because while technically driveable on a highway, it is not intended to be used in that way. However, like boats, streetcars and trains, it is unlawful to drive these vessels while under the influence of alcohol, albeit under different statutes.
There are defenses available in DUI cases and we may be able to get your Torrance DUI charges reduced or dismissed.
Have you or someone you know been charged with DUI or any other crime? Contact Ernenwein & Johnson, Los Angeles and Orange County Criminal Defense Lawyers today at 310-375-5858 for a free case review.