Written by attorney Keith David Greene

DUI: What constitutes "driving" a motor vehicle?

When charged with a DUI, or any crime for that matter, it is critical to understand all the elements of the crime. Further, the prosecution must prove ALL ELEMENTS of the crime beyond a reasonable doubt. The elements to a DUI offense include:

  1. driving or operating or being in control of a motor vehicle;
  2. on a road or highway (or anywhere within the state);
  3. while under the influence of alcohol (with a blood-alcohol concentration of .08 percent or higher).

In a typical case, the prosecutor and defense counsel immediately focus on the third element of the offense (whether the defendant was under the influence or had an excessive blood-alcohol level). However, it is important not to overlook the fact that the defendant may not have been observed driving.

A common situation is the discovery of an intoxicated defendant sitting in a car that has been involved in some type of collision. The conclusion that the defendant was driving may be logical, but is not necessarily legally sufficient. This guide will give a look into the three most common and often litigated scenarios pertaining to whether a defendant was "driving" or "operating" the vehicle.

#1: Where the defendant is asleep or unconscious and the engine is off:

Generally, courts view unconsciousness behind the wheel while the engine is off as insufficient for proof of driving or operating a motor vehicle. The reason behind this view is that an unconscious driver or one who is asleep does not have "actual physical control" over the vehicle.

It should be noted however that courts will look to other circumstances, for example, the location where the vehicle was found. In State v Zavala, the court found no "actual physical control" because the defendant's ignition was turned off and the vehicle was entirely in the highway's emergency lane.

However, in other cases, courts have found there to be "actual physical control" where the driver was found in the driver's seat with the keys in his pocket.

#2: Where the defendant is asleep or unconscious and the engine is on:

This scenario poses a more difficult problem. On the one hand, the court may find this to be sufficient circumstantial evidence of driving. On the other hand, another court may decide that driving requires that the driver be conscious and/or the vehicle to be in motion.

Generally, the court may look to a variety of factors to determine whether the defendant was driving. These factors may include where the vehicle was found, whether the headlights were turned on, where the defendant was found in the vehicle, how warm the engine is, whether the shift gear is in Park, Neutral or Drive, and whether any other vehicle lights are on.

#3: Where the defendant is conscious, the engine is on, but there is no vehicular movement:

A slew of court decisions have held that there must be some actual movement of the vehicle for the facts to constitute driving or operating. However, this position may be weaker in jurisdictions where only "physical control" is required.

In California, the California Supreme Court held that "there must be some actual volitional movement of the vehicle by the defendant to amount to driving" (Mercer v DMV).

The information contained in this guide is meant as general information for the public and it should not be construed as legal advice.

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