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DUIs Require that “Driving” be Proven

Driving Under the Influence of Alcohol or With a 0.08 Percent or Higher Blood Alcohol Content, are described  by Vehicle Code section 23152, subsections (a) and (b) respectively. Cal. Vehicle Code § 23152(a)-(b). Driving Under the Influence arrests and prosecutions, although exceedingly common, can have some of the most damaging impacts on the daily lives of the drivers facing the allegations. This is because these offense impact not only one’s criminal record, but also may lead to the suspension or revocation of their driver’s license, depriving them from getting to work, dropping kids off at school or daycare, taking a loved one to the hospital, or any of the other limitless activities we rely on our vehicles for.

The DMV procedure for suspending one’s license after a DUI arrest is called the “Administrative Per Se hearing”. At the hearing, a DMV hearing officer – not a judge – determines if a driver’s license should be administratively suspended under Vehicle Code section 13353.2 connected to an arrest relating to a Driving under the Influence/0.08 Percent or Higher Blood Alcohol Content. In the most common scenario, the DMV must determine if:

 (1) Whether the officer had reasonable cause to believe the licensee was driving a motor vehicle while under the influence of alcohol?

(2) Was the licensee was placed under lawful arrest?

(3) Was the licensee driving a motor vehicle when you had a Blood Alcohol Content (BAC) of .08% or higher?

See Cal. Vehicle Code § 13353.2.

Similarly, a DUI conviction, meaning a finding by a jury or judge at a trial if not by plea of guilty/no contest, requires:

1) The defendant drove a vehicle;
2) When (he/she) drove, (he/she) was under the influence of an alcoholic beverage, or, the defendant’s blood alcohol level was
0.08 percent or more by weight.

CALCRIM 2110, 2111; Cal. Vehicle Code § 23152(a)-(b).

Thus, both the DMV administrative per se hearing, as well as the crime of Driving Under the Influence/0.08 Percent or Higher Blood Alcohol Content in a court of law, require that the licensee be driving at that time of of intoxication.

Meaning of “Drive” in Context of DUIs

The definition of the word “driving” in the context of Vehicle Code section 23152 was discussed by the California Supreme Court in the matter of Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753.

In Mercer, the respondent  had his license suspended after being determined to have driven a motor vehicle under the influence of alcohol. Mercer, supra, 53 Cal.3d at 756. The respondent contended there was no evidence of driving the vehicle, because there was no observation by the arresting officer that the respondent had caused the vehicle to move. Id. at 758. The California Supreme Court determined that the term “drive” under Vehicle Code section 23152 “requires proof of volitional movement of the vehicle.” Id. at 768. Because there was no observation of driving or other proof that the respondent had actually caused his vehicle to move, the Court determined that he was not lawfully arrested, and reversed the suspension on the respondent’s license. Id. at 768.

Thus, in order to find a licensee did violate the prohibition of Driving Under the Influence/0.08 Percent or Higher Blood Alcohol Content at either the Administrative Per Se hearing, or at a trial in a court of law, it must be proven that  the licensee was actually “driving” a motor vehicle, meaning volitionally moving the motor vehicle, while under the influence of alcohol or with a 0.08 percent or higher blood alcohol content. Mercer, supra, 53 Cal.3d at 768.

“No Drive” Defense and DUIs

Based on the requirement that “driving” be proven at the administrative DMV hearing and at a trial, an experienced criminal defense attorney can often use facts that may indicate the licensee either never drove the vehicle, or that they discontinued driving before intoxication, to their advantage to  prevent license suspension and/or conviction, or come to a resolution that is preferential to the consequences associated with a standard DUI. These type of situations are very common, and occur, for instance, where a party might be “sleeping it off” after having to much to drink but never actually started their vehicle or moved it in any way.

If you have been arrested for a DUI and want an attorney you can trust to fight for your license, and freedom, call Honeychurch Law today at 707-429-3111. Our attorneys have obtained outstanding results for our clients for nearly four decades, both against the DMV and in the courtroom, and will work tirelessly to obtain the best results for your case.


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