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“Driving” Defined under Driving Under the Influence Charge in San Diego

To prove that the defendant was driving a vehicle, the prosecution must prove that the vehicle was moving and that the defendant caused the movement of the vehicle.

Authority: Mercer v. DMV (1991) 53 C3d 753, 280 CR 745

The DMV (Appellant) revoked Mercer’s (Respondent) driving privileges because respondent refused to submit to a chemical test after his arrest for driving under the influence. The court reversed the lower court and stated that respondent’s license could not be revoked pursuant to Cal. Vehicle Code §§ 23517 (renumbered to 23612) and 13353 because he was arrested unlawfully while being intoxicated pursuant to §23152(a). Cal. Vehicle Code § 23612 states that a person who is driving a vehicle is agreeing to a chemical test of his/her blood or breath to determine how much alcohol the person has on its blood. Section 13353 states that if a person refuses to submit a chemical test pursuant to section 23612, the DMV can suspend the person’s driving privilege for a year. Section 23152(a) states that it is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle. The court states that the phrase “to drive a vehicle” is a voluntary movement of a vehicle and not “operating a vehicle”

People v. Wilson (1985) 176 CA 3d Supp. 1,222 CR 540, fn5

Wilson (Defendant) was convicted for driving under the influence in violation of Cal. Vehicle Code § 23152(a) and Cal. Vehicle. Code §23151(a) (renumbered to § 109) which states that “alcoholic beverages” are liquids that contain alcohol and are ingested by a person. The conviction was upheld because the court argued that a person of common intelligence understands the phrase “to drive” as a volitional movement of a vehicle.

If you have any questions about your DUI case in San Diego, please contact San Diego DUI attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense Lawyer