A man was found drunk and unresponsive in his car in the Las Floras area of Orange County. The car was parked and the engine turned off.
California law is very strict when it comes to driving under the influence. To prove that a person is guilty of DUI in Orange County, and California in general, the prosecution must prove that the defendant drove a vehicle and that he/she was under the influence of alcohol or drugs when he/she drove.
The law makes it pretty clear what constitutes “under the influence”, but what about “driving” under the influence. The law defines driver and driving as follows: “A driver is a person who drives or is in actual physical control of a vehicle; and “A person drives a vehicle when he or she intentionally causes it to move by exercising actual physical control over it. The person must cause the vehicle to move, but the movement may be slight.”
In the situation here, where the man is found slumped over and unresponsive in his car, will or can he be found guilty of driving under the influence as it applies to Vehicle Code Section 23152(a) and 23152(b). In the well established case of Mercer v. Department of Motor Vehicles the Supreme Court upheld “decades of case law” holding that the word “drive” when used in a drunk driving statute, requires evidence of a defendant’s volitional movement of a vehicle. They further go on to say that the everyday usage of the phrase “to drive a vehicle,” is understood to mean movement of a vehicle.
However, there are exceptions. If an intoxicated person is stopped near or at an accident scene, or when a vehicle is found protruding into the street. Further, if the driver is seen driving by witnesses prior to being stopped. In these situations, the officer has reasonable cause to believe that the occupant of the stopped car was driving while intoxicated and can then be arrested.
In the Mercer case, the Superior court issued a writ of mandate directing the Department of Motor Vehicles to set aside its order revoking Mercer’s driving privilege. The Superior Court held that Mercer had not been lawfully arrested because Mercer was legally parked next to a curb and the arresting officer had not observed volitional movement of the vehicle. Several Courts have held that observed volitional movement of a vehicle is required before a person’s driving privilege may be suspended or revolked.
In the Mercer case, the DMV appealed the Superior Court’s order and the Court of Appeal reversed and directed the Superior Court to reinstate the revocation order. The Supreme Court then granted review and upheld the Superior Court’s order for Writ of Mandate, directing the DMV to once again set aside it’s order revoking Mercer’s driving privilege.
Anyone who has been arrested for driving under the influence should seek immediate assistance from an experienced DUI Defense Attorney who also has experience in dealing with the Department of Motor Vehicles.
Police Officers must follow procedures when detaining, questioning and arresting someone on suspicion of driving under the influence. It is the job of an aggressive criminal defense attorney to look for mistakes or misconduct when it comes to the actions of a police officer in making an arrest.
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