"No Driving" Defenses in California Preliminary California Criminal Court "Driving" Defense Questions in DUI cases include: 1) Did California police officer actually observe the person driving the vehicle?
2) Does the officer have first-hand knowledge of the person driving?
3) Was the vehicle lawfully parked when the officer arrived on the scene?
4) Is there a reliable witness who can actually identify the person as the driver?
5) Could there have been another person driving?
6) Can competent witnesses establish the vehicle moved within 3 hours of the chemical test?
7) Is corpus delicti for a DUI offense (actual driver + driving of vehicle, etc.) established?
8) Was the warrantless DUI arrest lawful? California Case Law often used by Superior Court Judges may vary from DUI case to DUI case A "slight movement" of the vehicle in the arresting officer's presence
must be shown, to constitute direct evidence that the vehicle was being driven.
People v Wilson (1985) 176 CA3d Supp 1, 8, 222 CR 540.
Moving the vehicle even a few inches constitutes "driving" the vehicle.
Music v Department of Motor Vehicles
(1990) 221 CA3d 841, 850, 270 CR 692.
California Vehicle Code section 23152 (DUI)'s requirement "to drive
a vehicle" means there must be evidence of "volitional movement" of a
vehicle. A misdemeanor arrest without a warrant is permissible only if
a public offense occurs in the arresting officer's presence. Because
the officer who arrested the driver did not see the driver's vehicle move,
the driver was not lawfully arrested for a violation of Vehicle Code
Mercer v Department of Motor Vehicles (1991) 53 C3d 753,
762, 280 CR 745 Proof that the person was driving may be attempted to be shown by circumstantial evidence, in some DUI cases o Elimination of other possible drivers. If other possible drivers
have been eliminated from consideration, the defendant's
proximity to the vehicle is evidence from which a reasonable
inference may be drawn that the defendant was the driver.
In one case, a defendant who was found standing alone next to the
vehicle after the accident and whose injuries were consistent with
having sat in the driver's seat was properly found to be the driver.
e.g. People v Gapelu (1989) 216 CA3d 1006, 1009, 265 CR 94.
But e.g. People v Moreno (1987) 188 CA3d 1179, 1186, 1190, 233
CR 863 (corpus delicti was not established when there was no
evidence that defendant was driver and there were other people at
scene who may have driven); People v Nelson (1983) 140 CA3d
Supp 1, 3, 189 CR 845 (corpus delicti was not established because
it was possible other individuals may have been driving). Corpus delicti in a DUI case Corpus delicti for a DUI offense was established in a case in
which the officers found the vehicle parked on the side of the
highway with a flat tire, the defendant was sitting in the passenger
seat of the vehicle while her companion was changing the tire, they
were the only individuals in the vicinity of the vehicle, and both
were under the influence of alcohol. The prosecution was not
required to establish who was driving as a condition precedent for
the admissibility of the defendant's statement that she was the
driver. Once the prosecution established that a reasonable
inference to be drawn from the evidence was that a person under
the influence of alcohol drove the vehicle on the highway, it was
entitled to use the defendant's statement to establish that she was
the driver. It was not required to eliminate all other inferences to
establish the elements of the crime of DUI. People v McNorton
(2001) 91 CA4th Supp 1, 5--6, 110 CR2d 930. Even a parked car may establish a Corpus Delicti in a DUI case See also People v Martinez (2007) 156 CA4th 851, 855--856, 67 CR3d 670 (corpus
delicti established by evidence that an automobile was parked
facing the wrong way with its engine running and its headlights on,
and evidence that there were only two people in the vicinity, one of
whom was in the passenger seat with her seatbelt buckled, and one
of whom was intoxicated). Some parked car cases could mean the person was driving o Parked vehicle. The corpus delicti for a DUI offense was
established when the officers found the vehicle parked with its
front tire missing and raised on a handjack, and the defendant had
the keys to the vehicle and lug nuts in his pocket. See People v
Scott (1999) 76 CA4th 411, 417--418, 90 CR2d 435. See also
People v Komatsu (1989) 212 CA3d Supp 1, 5, 261 CR 681
(corpus delicti was established when officers discovered that
vehicle was blocking roadway, parking lights of vehicle were on,
defendant was only person in vicinity of vehicle and was
intoxicated, and defendant was sleeping in front passenger's seat
holding car keys). Music is the key case in helping defendants prevail in parked car cases But again see Music v Department of Motor Vehiclesz'
(1990) 221 CA3d 841, 850, 270 CR 692 (warrantless arrest of
defendant was illegal because defendant did not move vehicle in
officer's presence; arrest occurred when officer observed defendant
sitting in driver's seat of his vehicle, which was parked in parking stall
with engine running). DMV is separate from the Court California DMV administrative per se laws vary,
may be beyond the scope of the above cases, and are subject to
different procedures, rules and legal standards. The holdings in
criminal cases involving review of these criminal requirements should
not apply to a DMV proceeding unless it is based on a DMV decision.
While DMV is bound to follow the above DMV decisions, DMV
cannot rely on these criminal cases to support an administrative
finding of "driving." Additional resources provided by the author
California Judges Benchguides
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