Legal Details About Volitional Movement and DUI Charges

In Mercer v. DMV (1991) 53 Cal.3d 753, the California Supreme Court contrasted the term “drive,” commonly understood to require volitional movement of the vehicle, with the term “driver,” defined in CVC § 305 as one who is either driving or in actual physical control. The court pointed out that the phrase “actual physical control” does not appear anywhere in the drunk driving offense statutes. Further, the court noted that since “driver” is defined as one who drives or is in actual physical control, the two terms (drive vs. actual physical control) must have different meanings. Construing these penal statutes strictly, rather than broadly, as is required by Keeler v. Superior Court of Amador County (1970) 2 Cal.3d 619, 631, the court held that mere actual physical control is not enough to constitute driving. Therefore the term: “drive”, at least for purposes of the drunk driving statutes, requires volitional movement of the vehicle.

The Mercer Supreme Court decision came down after the lower court’s published decision (Mercer v. DMV, former opinion at 222 Cal.App.3d 823), which relied upon Henslee v. DMV (1985) 168 Cal.App.3d 445, to find driving without vehicle movement, and the contemporaneous decision in Music v. DMV (1990) 221 Cal.App.3d 841, which found that driving required movement. These two were decided on extremely similar facts. The Supreme Court Mercer decision was plainly contrary to that in Henslee.

In Music, the defendant was asleep behind the wheel with the engine running, though the transmission was not in gear. Upon being awakened by the arresting officer and being asked to shut off his engine he “fumbled around trying to grab and find the keys and turn it off and instead of doing that he reached and started messing with the gear shift,” though “he did not even manage to put the truck in gear.” The court found that these activities did not amount to driving because the vehicle never moved.

In Mercer, the facts were nearly identical except the defendant had not been ordered to shut off the engine when he “started pulling gears [on the manual transmission] as if ... in his mind, he was already driving or about ready to drive.” The lower court’s decision, later overturned by the Supreme Court in Mercer, found driving without vehicle movement.

The Mercer court also pointed out some of the implications of its holding with respect to legality of arrest and proof of the offense at trial.

Regarding proof at trial, the court stated that its holding is not intended to require at trial any proof of volitional movement in the presence of the arresting officer. There must merely be proof that the defendant drove, and the proof must include volitional movement, but that proof can be by circumstantial evidence as pointed out in cases cited. (See §7:41.2 for more information on the use of circumstantial evidence at trial to prove driving.)

Interestingly, People v. Nelson (2011) 200 Cal.App.4th 1083 held that a defendant’s act of listening to messages on a handheld wireless telephone while stopped at a traffic light was done “while driving” in violation of Vehicle Code § 23123, which prohibits driving while using a wireless telephone that is not hands-free. The court distinguished Mercer and held that while the term “drive” requires volitional movement, the phrase “while driving” does not require movement contemporaneous with the use of the cell phone. The court applied rules of statutory construction and held that the legislature intended to apply Vehicle Code § 23123 to drivers who momentarily stop at any red lights or other momentary pauses.

Subsequent to Mercer, the Court of Appeal held that steering a car while someone else works the gas and brakes is driving. In re Queen T. (1993) 14 Cal.App.4th 1143. If you are ever in this situation, you might want to argue that the person steering was not the driver, but only aided and abetted in driving (emergency doctrine) and should thus be entitled to an instruction on lesser included offenses See, e.g., People v. Loza (2012) 207 Cal.App.4th 332.

In Adler v. DMV (1991) 228 Cal.App.3d 252, the court held that opening a car door on driver’s side is “driving” and in “operation” “in any manner” under CVC §§ 305 and 16000 (financial responsibility).

The court held similarly in the case of Cabral v. Los Angeles County Metropolitan Transportation Authority (1998) 66 Cal.App.4th 907, that the opening of the door of a parked car was “use” or “operation” for purposes of Civil C. § 3333.4 restricting the damages allowable to uninsured drivers. A reading of these cases makes it clear that opening a car door and other similar “operating” activities are not “driving” for purposes of the drunk driving laws.

Is it “driving” when a person moves a car a slight distance after an accident?

In a 1937 Superior Court Appellate Department opinion entitled People v. Kelley (1937) 27 Cal.App.2d Supp. 771), the court stated:

To say that defendant “drove” his car on the highway would be to allow the general language of the statute to extend its operation beyond the scope of its obvious purpose. It would require that the word “drive” should be understood as embracing any movement of a car under its own power, however slight the movement and however urgent or imperative the necessity therefore, and however incapable the car, after an accident, might be of use for the purpose of travel, so long as it could be moved at all by its own power. The car in question was not being taken away, nor from one place to another. It was being moved into a safe location at the same place. It was being taken out of the way of traffic, not into it. In its disabled condition it could not have been driven or moved under its own power for any considerable distance.