DMV Issue: Reasonable Cause to Believe the Person was Driving a Motor Vehicle in a DUI

Common driving issue questions in a DUI administrative hearing include:

How can California DMV prove I was driving?
What should my San Diego DUI defense Attorney take into account?
What does the DMV hearing officer’s Manual say about reasonable cause to believe I was driving in San Diego?

DMV has the burden of proving both driving and reasonable cause to believe the person was driving a vehicle, by a preponderance of the evidence. When there is questionable evidence establishing driving in a San Diego DMV administrative hearing, local DUI defense lawyers may wish to view what the below Hearing Officers’ Driver Safety Manual says about the issue of reasonable cause to believe the person was driving a motor vehicle.

“12.067 Reasonable Cause to Believe the Person was Driving a Motor Vehicle

The third issue of a BAC hearing requires a determination of whether actual driving took place, regardless of the peace officer’s reasonable belief. The driving component of reasonable cause is an issue that has been much debated in case law.

In most cases, reasonable cause to believe the person was driving is established by the observation of the officer who witnessed the driving and made the arrest. Reasonable cause that driving occurred can also be established from the statements of another officer or witness. If the eye witness is a private citizen, his/her testimony will be needed, and a subpoena should be issued.

When there are no witnesses, the officer may use circumstantial evidence establishing reasonable cause to believe the person was driving under the influence. For example, after a collision, the officer may arrive on the scene and find a person with a bruise on their head and particles of glass in the hair. The glass of the windshield may be shattered, the person may be complaining of chest pains, and the steering wheel bent. (See Section 12.069, Collisions)

The following are examples of circumstantial evidence that may lead the law enforcement officer to believe the respondent was driving:

• Vehicle registered to respondent.
• Engine was warm.
• Respondent was alone in vehicle.
• Respondent was sitting behind the wheel.
• The position of the driver’s seat was suited for a person of the respondent’s size.

The officer may have reason to believe the driver had been driving per §40300.5 VC and make an arrest. The following are elements of §40300.5 VC:

a) Person is involved in a traffic accident.
b) Person is observed in or about a vehicle obstructing a roadway.
c) Person will not be apprehended unless immediately arrested.
d) Person may cause injury to himself or herself or damage property unless immediately arrested.

e) Person may destroy or conceal evidence of the crime unless immediately arrested. In a DMV hearing, if there were no eyewitnesses to a collision, the driver’s testimony admitting to driving is enough evidence to establish factual driving. This kind of testimony is called an admission. The use of a driver’s admission to driving to establish both reasonable cause and actual driving in a hearing is addressed in Jackson v. DMV, 1994 22 Cal.AppAth 730. In Corrigan v. Zolin, 1996 47 Cal.AppAth 230 the court further held that under Cal. Veh. Code §40300.5 and §40300.6, the arresting officers had reasonable cause to arrest due to the admission of driving.

Some questions, which you may need to be aware of to resolve a “driving” issue during a hearing, are:

• What is driving?
• Can a person be the driver of a vehicle if the vehicle is not moving?
• Does the act of driving stop if the vehicle is stopped?
• When is a vehicle parked vs. driving?
• Can a vehicle be moving when the operator is not considered to be driving?
• Can a passenger who grabs the steering wheeling be considered to be driving?

Caveat: Since the Mercer State Supreme Court case in 1991, and a change in the Vehicle Code, effective January 1, 1993, “actual physical control” is no longer a requirement to uphold an APS case. A lawful arrest can be made pursuant to §40300.5 VC when an individual behind the wheel is legally parked with the lights on and the engine running, and does not move the vehicle in the presence of an officer or there are no other witnesses that observed driving.

“Park” or “parking” means the standing of a vehicle, whether occupied or not, except when temporarily loading or unloading passengers per §463 Vc.

NOTE: The need to prove actual driving applies to excessive BAC cases. The case law Troppman v. Valverde, 2007 40 Cal.4th 1121 allows an officer to make an arrest when there is belief the person had been driving, but subsequently refused to submit to a chemical test.

12.068 Collisions

In a case involving a collision, decide if the circumstances which led the officer to believe the person had been driving in violation of §23136, §23152, §23153, and/or §23154 VC and what caused a “reasonable person” to come to that conclusion. Suggested questions for the officer or other witness(es):

• When did the collision occur?
• Who called the police?
• How long after the collision was the call made?
• When did the first officer arrive on scene?
• Where were the drivers in relation to their cars?
• What had the drivers done between the time of the collision and the time of arrival of the police?
• What was the extent of property damage?
• Do you believe the impact was loud enough to be heard?
• Was the driver injured? How?
• Was there a witness to the collision or an admission by the driver?
• Was the arrest made at a place other than the scene of the collision? Why?
• What were the circumstances? How was the driver identified? Did the officer verify that a collision occurred? How?”

{Pages 12-31 to 12-33 of California DMV Driver Safety Manual – Chapter 12 Administrative Per Se Hearings]