San Diego DUI Law Center

San Diego California “Driving” Element of “DUI” Issues

San Diego DUI attorneys can begin an inquiry of how well the prosecutor can or cannot prove driving, by asking:

A) Did the San Diego DUI officer personally see the accused drive the subject vehicle?
B) Did the San Diego DUI cop possess first-hand knowledge of the accused’s driving?
C) When the San Diego DUI cop came upon the vehicle, was it lawfully parked?
D) Where was the accused when the officer first made contact?
E) Can a witness “ID” the accused as the driver?
F) Might someone other than the accused possibly have been driving?
H) Do witnesses have first-hand knowledge that the vehicle actually moved three hours before the blood or breath test?
I) Can the evidence prove the corpus delicti for the DUI charge (volitional movement of vehicle + positive identity of driver + other relevant facts)?
J) Was this warrantless arrest a lawful DUI arrest?

California DUI Law applied by San Diego Judges varies from case to case, lawyers relate.

A “slight movement” of the vehicle in the officer’s personal presence must be proven, to constitute direct evidence of the driving of the vehicle. People v Wilson (1985) 176 CA3d Supp 1, 8, 222 CR 540. Movement of a vehicle – even a few inches – constitutes “driving” of the vehicle. Music v Department of Motor Vehicles (1990) 221 CA3d 841, 850, 270 CR 692. To establish California Vehicle Code 23152’s Driving Under the Influence of Alcohol and/or Drugs’ element of “driving” the vehicle, actual “volitional movement” of the vehicle must be proven. A misdemeanor San Diego DUI arrest may be made without a warrant only if an actual public offense happened in the officer’s personal presence. When the officer who arrests the driver did not see the driver’s vehicle move, the driver was not lawfully arrested for a violation of Vehicle Code 23152(a) under Mercer v Department of Motor Vehicles (1991) 53 C3d 753, 762, 280 CR 745.

In limited DUI cases, proof the person was driving may be established by circumstantial evidence.

Complete process of elimination of the possibility of another driver. If other possible drivers have been eliminated with certainty, the accused’s proximity to the vehicle constitutes evidence from which a reasonable inference may be drawn that the accused may have been the driver. A person discovered standing alone next to the vehicle after an accident with injuries consistent with sitting in the driver’s seat was properly found to be the driver in one case. Compare People v Gapelu (1989) 216 CA3d 1006, 1009, 265 CR 94. with People v Moreno (1987) 188 CA3d 1179, 1186, 1190, 233 CR 863 (corpus delicti not demonstrated when no evidence that accused was driver and other people were also at scene who could have have driven); People v Nelson (1983) 140 CA3d Supp 1, 3, 189 CR 845 (corpus delicti not established since possibly other persons may have been driven).

DUI & Corpus delicti

Proof of the Corpus delicti in San Diego DUI must be established. Where officers found the vehicle parked on the side of a California highway with a flat tire, the accused 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, corpus delicti was established. The DUI attorney prosectuor 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 DUI lawyer prosecutor 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, they were able to use the defendant’s statement to establish that she was the driver. Elimination of all other inferences to establish the elements of the crime of DUI was not required in this case. People v McNorton (2001) 91 CA4th Supp 1, 5–6, 110 CR2d 930.

Corpus Delicti may be established with a parked vehicle

In People v Martinez (2007) 156 CA4th 851, 855–856, 67 CR3d 670, corpus delicti was 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.

Parked vehicle DUI cases may or may not mean the accused was driving

Corpus delicti for a DUI offense was established when officers found vehicle parked with its front tire missing and raised on a handjack, and accused had the keys to the vehicle and lug nuts in his pocket. People v Scott (1999) 76 CA4th 411, 417–418, 90 CR2d 435. In People v Komatsu (1989) 212 CA3d Supp 1, 5, 261 CR 681, corpus delicti was also established when officers discovered vehicle was blocking roadway, parking lights of vehicle were on, accused was only person in vicinity of vehicle and was intoxicated, and accused was sleeping in front passenger’s seat holding car keys.

Music is a helpful case for the accused facing parked car DUI charges

In Music v Department of Motor Vehicles (1990) 221 CA3d 841, 850, 270 CR 692, the warrantless arrest of the accused was illegal because the accused did not move the vehicle in the officer’s presence; the DUI arrest happened after the officer observed the accused sitting in the driver’s seat of his vehicle, which was parked in parking stall with engine running.

DMV is separate from the Court

San Diego DMV license suspension procedures and legal applications are different. These administrative per se actions may or may not utilize California criminal cases cited above. Rules and legal tests can be distinguishable . California DUI criminal cases should not adversely apply to a civil administrative DMV action. Determinations can only fairly be based on a DMV decisions and standards. DMV should not rely on criminal court standards in civil cases to attempt to make a DMV finding of “driving.”