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The “Driving” element in a San Diego DUI and DMV hearing (APS)

by | Jan 10, 2014 | DUI Cases |

Was someone Impaired &/or .08% and DRIVING? A San Diego driving DUI is one of the best defenses. Was someone driving and committed a San Diego DUI? So…when does a San Diego driving issue come up? Here are some examples:

Car pulled over on the side of the road. Person sleeping? How long have they been there? Did someone else drive and leave? Police respond to reports of possible San Diego DUI vehicle? They contact owner at the house while in the PJs?

Police see a vehicle roll a stop sign. By the time the police arrive four like built guys (we see this a lot with military clients) all out of the car crossing to the street? Who drove?

These are just a few of dozens of scenarios that are valid instances of not committing a San Diego DUI. This article focuses more from the aspect of how can you refute this issue with a DMV hearing officer. You still may win in court with a San Diego DUI, but DMV will still suspend your license.

California Department of Motor Vehicles has gone on record with its Driver Safety Manual for administrative per se hearings after a San Diego DUI arrest. A relatively common issue attorneys deal with in these actions is whether or not DMV has evidence to find the accused person was “driving.” San Diego DUI lawyers like to use this verbatim language when asking DMV to NOT suspend:

“12.071 Insufficient Evidence to Support the Driving Sub-Issue

The hearing officer should make negative findings on the reasonable cause issue if there is insufficient evidence to establish the officer’s belief driving took place.

A set aside is in order when the evidence supports the respondent denied driving, there was no observed driving, AND there is no circumstantial evidence of driving. Some examples include:

• the vehicle was legally parked.

• the person claimed another person was driving.

• the circumstantial evidence is not consistent with driving.

• the person cannot recall a collision or driving and other evidence is questionable.

• a witness saw the driver leave the scene, but failed to give their address or indicia of reliability.

• An anonymous tip regarding erratic driving was provided to law enforcement. (See Florida v. J.L., 529 US 667 (US Supreme Ct) regarding an anonymous tip.)

• the peace officer’s observations do not constitute driving.

12.070 Driving Takes Place on Private Property

A peace officer can arrest drivers for a San Diego DUI in parking lots, off road areas, etc., because they are considered having public access. However, a driver cannot be arrested for any traffic violation on private property, ranch, backyard, etc., without the driving first being observed on a public roadway.

12.075 Insufficient Evidence to Support Driving While Intoxicated

There may be insufficient evidence to support that the officer had reasonable cause to believe driving occurred while the person was under the influence.

If there are situations where there is evidence and/or testimony to support that alcohol was consumed after driving, but before contact with an officer, examine the evidence and/or testimony. Ask additional questions to establish when the alcohol consumption occurred.

This argument is usually associated with:

• hit and run collisions

• when the driver leaves the vehicle behind to avoid apprehension

• unobserved single vehicle collisions.”

Keep in mind that DMV often misquotes the law. For example, if the DMV fails to state what the California Supreme Court actually stated about “driving” and the requirement of proof of “volitional movement” in Mercer v. DMV:

“Based on (i) the “plain meaning” of the statutory term “drive,” (ii) the use of that and related terms by our Legislature in related statutes, and (iii) the interpretation of the word “drive” and related terms in numerous decisions by our sister states, we conclude section 23152 requires proof of volitional movement of a vehicle.

Because Penal Code section 836, subdivision 1, provides that a warrantless misdemeanor arrest is permissible only if a public offense occurs in the arresting officer’s “presence,” and because the officer in this case did not see Mercer’s vehicle move, we conclude Mercer was not “lawfully arrested” for a violation of section 23152(a) and thus cannot be subjected to the license revocation provisions of sections 23157 and 13353 as presently written.”

California DMV simply needs to follow the law, not just their manual.

Hire a Proactive, affordable, and quality defense when you are facing San Diego DUI charges. Whether you have been charged of a San Diego DUI, Poway DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Carmel Valley DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI, El Cajon DUI it is vital you need to hire an attorney who knows how to defend your rights and can determine if the government can prove their case. Contact the Law Office of Mark Deniz now for a free case evaluation.

Here is the case above in detail:

53 Cal.3d 753 (1991)809 P.2d 404280 Cal. Rptr. 745
BARRIE GRAY MERCER, Plaintiff and Respondent,


DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.
Docket No. S017249.

Supreme Court of California.

May 6, 1991.

1“>1[driver’s implied consent to chemical testing following “lawful arrest” for violation of § 23152]; § 23152, subd. (a) [hereafter section 23152(a)] [unlawful for any person who is “under the influence” of alcohol or drugs to “drive a vehicle”]; § 13352, subd. (a)(3) [suspension or revocation of driving privilege for refusal to submit to testing pursuant to § 23157].) The Court of Appeal reversed and directed the superior court to reinstate the revocation order.

We granted review to resolve a conflict in the Court of Appeal concerning interpretation of the implied consent (§ 23157) and related license revocation (§ 13353) statutes. Several courts have held that observed volitional movement of a vehicle is required before a person’s driving privilege may be suspended or revoked for refusal to submit to chemical testing. (E.g., Music v. Department of Motor Vehicles (1990) 221 Cal. App.3d 841 [270 Cal. Rptr. 692] [Music].) By contrast, the present Court of Appeal, claiming support for its view in Henslee v. Department of Motor Vehicles (1985) 168 Cal. App.3d 445 [214 Cal. Rptr. 249] [Henslee], holds that observed movement of a vehicle is not required as a condition of suspension or revocation of driving privileges for failure to submit to testing. We conclude the Musicapproach correctly interprets the statutes, and accordingly we reverse the decision of the Court of Appeal.

We emphasize at the outset the narrow scope of our inquiry and holding. (1) We donot hold that observed movement of a vehicle is necessary to support a conviction for “drunk driving” under section 23152. The lower courts have routinely upheld such convictions in the absence of evidence of observed movement of a vehicle. (See, e.g., People v. Wilson (1985) 176 Cal. App.3d Supp. 1, 8-9 [222 Cal. Rptr. 540],and cases cited.) Nothing in this opinion calls in question the holdings of these cases.

(2) Nor do we hold that observed volitional movement of a vehicle is a necessary condition of compelled chemical testing. Although the DMV and its amicus curiae seem to have ignored the fact, case law predating adoption of the implied consent statute continues to allow for such testing without a warrant, and without the consent of the person tested, so long as (i) the testing is incident to a lawful arrest, (ii) the circumstances require prompt testing, (iii) the arresting officer has reasonable cause to believe the arrestee is intoxicated, and (iv) the test is conducted in a medically approved manner. (Schmerber v. California (1966) 384 U.S. 757, 766-772 [16 L.Ed.2d 908, 914-917, 86 S.Ct. 1826] [Schmerber]; People v. Superior Court (1972) 6 Cal.3d 757, 761-765 [100 Cal. Rptr. 281, 493 P.2d 1145] [Hawkins].)

We address today only the narrow question of whether, under sections 23157 and 13353 as presently written, the state may suspend or revoke a driver’s license for failure to submit to chemical testing in the absence of evidence of observed volitional movement of a vehicle.

I. Facts and Procedure

At a revocation hearing held at Mercer’s request pursuant to section 14100 et seq., the following facts were adduced: In response to calls from neighbors, a police officer found Mercer slumped over the steering wheel of his car. His seat belt was fastened, the car lights were on, and the engine was running. The car was legally parked against the curb of a residential street. Mercer awoke after the officer rocked the car and banged on it with a flashlight. According to the officer, when Mercer “finally [came] around, he started pulling gears [on the manual transmission] as if … in his mind, he was already driving or about ready to drive.” Eventually Mercer ceased attempting to put the car in gear and rolled down the window, at which point the officer detected a heavy odor of alcohol on Mercer’s breath and ordered him out of the car.

After Mercer stumbled to the sidewalk the officer observed his slurred speech and red, watery eyes. The officer arrested Mercer without a warrant for driving under the influence of alcohol (§ 23152(a)), and advised him that under the implied consent law he was obligated to submit to chemical testing, or suffer suspension or revocation of his driving privileges. Mercer refused to take any chemical test; he responded, “I wasn’t driving.” He was not subjected to a chemical test.

Schmerber, supra, 384 U.S. 757, 766-772 [16 L.Ed.2d 908, 917-921], the high court held permissible the warrantless taking of a person’s blood for the purpose of chemical testing to determine intoxication, “provided that the taking of the sample is done in a medically approved manner, is incident to a lawful arrest, and is based upon the reasonable belief that the person is intoxicated.” (Hawkins, supra, 6 Cal.3d at p. 761, citing Schmerber, supra.) Shortly thereafter our Legislature enacted our implied consent law — former section 13353, the predecessor to section 23157.

In relevant part, the law today — and at the time of the offense — reads as it did when enacted in 1966. Section 23157, subdivision (a)(1) provides: “Any person who drives a motor vehicle is deemed to have given his or her 2“>2

Section 13353, subdivision (a), provides, “[i]f any person refuses the officer’s request to submit to … a chemical test… pursuant to section 23157, upon receipt of the officer’s sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23152 … and that the person had refused to submit to… the test … after being requested by the officer, the [DMV] shall … (3) revoke the person’s privilege to operate a motor vehicle for a period of three years if the refusal occurred within seven years of two or more separate violations of [other specified `drunk driving’ statutes], which resulted in convictions.” Subdivision © of section 13353 provides for a hearing, if requested, on four issues, namely: “whether the peace officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23152 …, whether the person was placed under arrest, whether the person refused to submit to … the test … after being requested by a peace officer, and whether … the person had been told that his or her driving privilege would be suspended or revoked if he or she refused to submit to … the test….” (See § 13558, subd. ©(1) [operative July 1, 1990].)

(3) Hawkins, supra, 6 Cal.3d 757, explained the purpose and scope of our implied consent law: “Although it is clear under Schmerber that a person who has been lawfully arrested may have a blood sample forcibly removed without his consent, provided it is done in a reasonable, medically approved manner and provided further that the arresting officer had probable cause to believe that the arrestee was intoxicated, nevertheless such an episode remains an unpleasant, undignified and undesirable one.

6 Cal.3d at pp. 764-765, italics added.)

As Hawkins (supra, 6 Cal.3d 757) makes clear, the implied consent statute — and its attendant license suspension or revocation “penalty” — is an adjunct to the preexisting, and still valid rule of Schmerber, supra, 384 U.S. 757. In other words,regardless whether the terms of the implied consent statute are met, forcible, warrantless chemical testing may occur under the authority of Schmerber if the circumstances require prompt testing, the arresting officer has reasonable cause to believe the arrestee is intoxicated, and the test is conducted in a medically approved manner incident to a lawful arrest. With this important understanding in mind, we turn to the question of whether license revocation is proper in this case.

Initially, we emphasize the narrow scope of our implied consent statute as presently written. In three important respects our implied consent statute is substantially more circumscribed than those of our sister states.

(4a) First, as our Courts of Appeal have correctly held, unless a person is “lawfully arrested” (§ 23157, subd. (a)(1)) for a violation of the substantive offense of section 23152, he or she is not subject to license suspension or revocation under sections 23157 and 13353. (See Music, supra, 221 Cal. App.3d at p. 847; Padilla v. Meese(1986) 184 Cal. App.3d 1022, 1026 [229 Cal. Rptr. 310] [Padilla]; Henslee, supra, 168 Cal. App.3d 445, 451; Mueller v. Department of Motor Vehicles (1985) 163 Cal. App.3d 681, 684 [210 Cal. Rptr. 14]; Buttimer v. Alexis (1983) 146 Cal. App.3d 754, 758 [194 Cal. Rptr. 603]; § 13353, subd. (a).) Most implied consent statutes in other states are significantly less restrictive. Many specify that the triggering arrest may be for “any” offense arising out of acts alleged to have been committed while the person was driving under the influence (see U.S. Dept. of Transportation, Driver Licensing Laws Ann. (1980) pp. 162-165 [hereafter Driver Licensing Laws]); others require only the physical act of “any” arrest, and still others do not expressly require an arrest at all. (See 4 Erwin, Defense of Drunk Driving Cases (3d ed. 1990) § 33.04, p. 33-51, fn. 20.)

Music, supra, 221 Cal. App.3d at pp. 847-848 [a warrantless “arrest for misdemeanor drunk driving … is invalid unless the police officer witnesses or perceives the act of driving under the influence”]; Padilla, supra, 184 Cal. App.3d 1022, 1026-1029; Henslee, supra, 168 Cal. App.3d 445, 451.) Our Legislature has enacted an exception to the common law rule of Penal Code section 836, subdivision 1, for “drunk driving” arrests made at or near an accident scene, or when a vehicle is found protruding into the street,3“>3 but neither exception applies when, as here, a vehicle is lawfully parked. Again, most states have statutes that are significantly less restrictive; many expressly exempt “drunk driving” arrests from the general rule that a warrantless arrest for a misdemeanor is permissible only when the arresting officer observes the offense occur in the officer’s presence.4“>4

Finally, California is one of only six states that condition operation of its implied consent law on the act of “driving” (as opposed to “operating,” etc.) a vehicle. (Driver Licensing Laws, supra, at pp. 160-161; see, post, fn. 24.) And significantly, as explained below, California is one of only seven states that confines the substantive offense of “drunk driving” to the act of “driving” a vehicle. (Post, pp. 764-769.)

These attributes of our implied consent law, together and in combination, make our statute one of the narrowest, if not the narrowest, in the nation. Contrary to suggestions of the DMV and its amicus curiae, whether this is desirable or wise is not our duty to decide; our role is to construe the statute as enacted by our Legislature.

We now turn to the essential question posed in this case, namely, whether an officer may make a “lawful arrest” for “drunk driving” in violation of section 23152(a), if the arrestee’s vehicle is lawfully parked and the officer has not observed the vehicle move. On this point the lower courts are Music, supra, 221 Cal. App.3d 841, 850; see also Padilla, supra,184 Cal. App.3d 1022, 1029; People v. Engleman (1981) 116 Cal. App.3d Supp. 14, 19 [172 Cal. Rptr. 474]; People v. Wilson, supra, 176 Cal. App.3d Supp. 1, 8-9[dictum].)

The contrary view, embraced by the Court of Appeal in this case, holds “driving” is established under the statutes if the arrestee, in the officer’s presence, “`actively asserts control over a vehicle and takes every step necessary to resume travel along the public road.’” (Quoting Henslee, supra, 168 Cal. App.3d 445, 451-452; see also People v. Hernandez (1990) 219 Cal. App.3d 1177, 1183-1184 [269 Cal. Rptr. 21] [dictum].) Music, supra, 221 Cal. App.3d 841, and the decisions supporting it, reasons that the phrasing of section 23152(a) (making it illegal for an intoxicated person “to drive a vehicle”) discloses legislative intent that some vehicular movement, however small, be established as an essential element of the offense. The Court of Appeal below disagreed, asserting, “Any `reasonable person would construe the phrase “to drive a vehicle” … as encompassing any act or action which is necessary to operate the mechanism and controls and direct the course of a motor vehicle.’” (Quoting Wilson, supra, 176 Cal. App.3d Supp. 1, 6.) The Court of Appeal concluded, “Where an intoxicated driver actually asserts such a degree of control over a vehicle stopped along a curb on a public street with its engine running that it is plain he will momentarily resume travel along the public roads, he is `driving’ in the sense intended in section 23152, subdivision (a) and provides a percipient police officer `reasonable cause to believe [the driver] has committed a public offense in his presence.’ (Pen. Code, § 836, subd. 1.) The mere fact that the vehicle never moved in [the officer’s] presence does not invalidate [Mercer’s] arrest for drunk driving under the circumstances of this case.” The court noted that the Legislature’s policy of deterring drunk driving supported a broad interpretation of the word “drive,” and suggested that absurd results would occur if police officers were made to wait for an intoxicated person to “lurch [the vehicle] forward” before making an arrest for drunk driving.

We are unpersuaded. Addressing the last point first, the Court of Appeal (and theDMV as well) appears to have overlooked the fact that the officer did not have to wait for Mercer to move his vehicle before making an arrest. On these facts, Mercercould have been arrested for attempted drunk driving (People v. Garcia (1989) 214 Cal. App.3d Supp. 1, 5 [262 Cal. Rptr. 915]) or public intoxication (Pen. Code, § 647, subd. (f); see People v. Engleman, supra, 116 Cal. App.3d Supp. 14, 19, and cases cited), and thereafter — pursuant to Schmerber, supra, 384 U.S. 757 — he could have been forced to Solberg v. Superior Court (1977) 19 Cal.3d 182, 198 [137 Cal. Rptr. 460, 561 P.2d 1148].) (6) In doing so we are guided by the rule that because section 23152 is a penal statute, it should be strictly rather than broadly construed. (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631 [87 Cal. Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420].)

In everyday usage the phrase, “to drive a vehicle,” is understood as requiring evidence of volitional movement of a vehicle. Numerous dictionary definitions — including Webster’s Third New International Dictionary (1981), cited by the Court of Appeal below, support a definition of “drive” that includes movement. (See, e.g., id.,at p. 692.)5“>5 We believe these definitions are consistent with the usual and ordinary understanding of that term, and suggest the sense in which the word was intended by the Legislature in the present context.

The use of similar terms in related statutes also suggests the Legislature intends the word “drive” in section 23152(a) to have a narrow rather than broad scope. Section 305, defining the noun “driver” for purposes of construing the Vehicle Code, provides, “A `driver’ is a person who drives or is in actual physical control of a vehicle….” Section 13353.2 likewise states the DMV “shall immediately suspend the privilege of any person to operate a motor vehicle if the person was driving or was in actual physical control of a motor vehicle” while having a prescribed blood-alcohol level. Similarly, section 12501 states that certain persons “driving or operating” vehicles are exempt from the general rule requiring a “driver’s license.” (Id., subds. (b) & ©.) The use of the disjunctive “or” in these statutes suggests the Legislature recognizes a distinction between one who “drives” a vehicle and one who “operates” or “is in actual physical control of” a vehicle, and that the 6“>6

Any doubt about our understanding of the word “drive” is dispelled by 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. (See, e.g., Underwood v.State (1931) 24 Ala.App. 191 [132 So. 606, 607]; State v. Graves (1977) 269 S.C. 356 [237 S.E.2d 584, 586-588] [Graves]; Annot. (1926) 42 A.L.R. 1498, 1501; Annot. (1956) 47 A.L.R.2d 570, 573; Annot. (1979) 93 A.L.R.3d 7, 15.) The analysis employed in Graves, supra, 237 S.E.2d 584, is typical. The court noted that the South Carolina statute — which like section 23152(a) prohibits “any person … who is under the influence [of alcohol, etc.], to drive any vehicle” — is penal in nature. Thus, the court reasoned, “we must approach its interpretation by invoking the rule of strict statutory construction and resolve any uncertainty or ambiguity against the State….” (Graves, supra, 237 S.E.2d at p. 586.)

The Graves court observed that South Carolina’s statute (like ours) was modeled after the original “Uniform Act Regulating Traffic on Highways, which is a substantial adoption of the uniform act by the same name that was approved by the National Conference of Commissioners of Uniform State Laws, 1926, as revised in 1930…. This uniform act served as the basis for the motor vehicle codes of numerous states….” (237 S.E.2d at p. 586.) As Graves noted, however, several states adopted amended versions of the uniform act and thereby prohibited an intoxicated person from “driving or operating” a motor vehicle. (Ibid.)7“>7 The court observed that the South Carolina Legislature — like ours — had “proscribed only driving a motor vehicle while intoxicated, and did not proscribe operating.” (237 S.E.2d at p. 586.) It continued:

“The distinction between these terms is material, for it is generally held that the word `drive,’ as used in statutes of this kind, usually denotes Graves, supra, 237 S.E.2d at p. 586.)8“>8

Graves concluded that under South Carolina’s statute, “the word `drive’ requires the vehicle to be in motion to constitute the offense,”9“>9 and invited the Legislature to amend the statute by adding the words “or operate” if it wished to broaden the scope of the drunk driving law. (237 S.E.2d at p. 586.)10“>10

Although as Graves observed, many states originally enacted statutes similar to section 23152(a), today only six states in addition to California 11“>11 New York12“>12and Delaware13“>13), or “driving or being in [or `having’] actual physical control” of a vehicle (e.g., Arizona,14“>14 Wyoming15“>15 and Maryland16“>16).

Accordingly, 43 states today have statutes that prohibit “driving or being in actual physical control“ of a vehicle (e.g., Florida, Georgia, Washington 17“>17 and the overwhelming majority of those statutes have been interpreted as ascribing to the italicized terms a broad scope not limited to or dependent on volitional movement of a vehicle.18“>18 In fact, most cases uphold a finding of “operation” or “being in actual physical control” even when, as in the present case, the arrestee was found asleep, slumped over the steering wheel of an operable car with its engine running.19“>19

Of our six sister states that have retained statutes that prohibit simply “driving,” it appears five have directly addressed the question whether evidence of volitional movement must be established to constitute “driving.” Two — South Carolina and West Virginia — have interpreted that term as requiring evidence of volitional movement. (Graves, supra, 237 S.E.2d 584, 586-588 [discussed ante]; State v. Taft, supra, 102 S.E.2d 152, 154 [volitional “movement of a vehicle is an essential element of the statutory requirement”].) North Carolina, relying on related state statutes, has determined its legislature intended that “drive” be synonymous with “operate,” State v. Coker, supra, 323 S.E.2d 343, 347.)20“>20 Finally, Colorado and New Mexico have interpreted “drive” as meaning “actual physical control,” and hence not requiring evidence of movement. (Brewer v.Motor Vehicle Div., Dept. of Rev. (Colo. 1986) 720 P.2d 564, 566-567; Boone v.State (1987) 105 N.M. 223 [731 P.2d 366, 368-369].)

In light of the above history and interpretation of similar statutes throughout the country, the position taken by the Colorado and New Mexico courts is unpersuasive. Each court premised its interpretation of “drive” on the assumption that its legislature intended to define “drive” as meaning “actual physical control” of a vehicle. For this proposition each court relied exclusively on the fact that its statute — like ours (§ 305, quoted, ante, p. 763) and those of 20 other states21“>21 — defines the noun “driver” as one who “`drives or is in actual physical control’” of a vehicle. (Brewer v.Motor Vehicle Div., Dept. of Rev., supra, 720 P.2d 564, 567, quoting Colo. Rev. Stat. § 42-1-102(22); Boone v. State, supra, 731 P.2d 366, 368, quoting N.M. Stat. Ann. § 66-1-4(B)(18).) But as we noted above (ante, p. 763), the presence of the disjunctive “or” in the quoted definition discloses legislative intent that a distinction be drawn between the verb “drive” and the concept of “actual physical control,” and thus it is improper to conclude, as did the Colorado and New Mexico courts, that the two terms are synonymous. (See Graves, supra, 237 S.E.2d 584, 587 (rejecting view advanced by Brewer and Boone under identical statutory language);22“>22 accord,Brewer, supra, 720 P.2d 564, 570-571 (Erickson, J., conc.).)

(4b) Based on (i) the “plain meaning” of the statutory term “drive,” (ii) the use of that and related terms by our Legislature in related statutes, and (iii) the interpretation of the word “drive” and related terms in numerous decisions by our sister states, we conclude section 23152 requires proof of volitional movement of a vehicle. The proposal of the DMV and its amicus curiae — i.e., that we should ignore these factors in order to effectuate what is asserted to be a better result in terms of social policy — evinces a fundamental misunderstanding about the nature of statutory construction and the 23“>23 We emphasize that our Legislature is free to revise the relevant statutes — as have many of our sister states — to yield a result requiring license suspension or revocation on the facts of this case.24“>24 Although policies favoring deterrence may militate in favor of such a change, we also recognize there are legitimate policy reasons that would support a decision to retain the current narrow statutory scheme, including the policy of encouraging intoxicated drivers to stop driving and safely park their cars until they become sober. As noted above, however, this determination rests with the Legislature, and not with the courts.

In any event, we emphasize that even if the Legislature declines to amend the statutes, the police are not rendered impotent to act. (7) They may, without a warrant, arrest a person such as Mercer for “attempted drunk driving” or public intoxication (Pen. Code, § 647, subd. (f)),25“>25 and thereafter force the arrestee to submit to chemical testing under the authority of Schmerber, supra, 384 U.S. at pages 766-772 [16 L.Ed.2d at pages 917-920], and Hawkins, supra, 6 Cal.3d at page 761. Nor does the requirement of observed volitional movement under the implied consent/license revocation Wilson, supra, 176 Cal. App.3d Supp. 1, 8-9, and cases cited.)

III. Conclusion

The judgment of the Court of Appeal is reversed.

Mosk, J., Panelli, J., Kennard, J., Arabian, J., and Baxter, J., concurred. Broussard, J., concurred in judgment.

1“>1 All future references are to the Vehicle Code unless otherwise indicated.

2“>2 Section 23153 makes it illegal to “drive” a vehicle while under the influence of alcohol or drugs, and, when so driving, to proximately cause bodily injury to another person. (Id., subd. (a); see also id.,subd. (b).) Because the operative language of the two sections is the same, future references in this opinion to section 23152(a) should be read to include section 23153.

3“>3 Section 40300.5 allows an officer to make a warrantless misdemeanor arrest without having reasonable cause to believe an offense has been committed in the officer’s presence, in two circumstances: arrest of a person “involved in a traffic accident” and arrest of a person “observed by a peace officer in or about a vehicle which is obstructing a roadway, when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage or any drug….” (See also § 40300.6 [§ 40300.5 “shall be liberally interpreted … to permit arrests to be made pursuant to that section within a reasonable time and distance away from the scene of a traffic accident….”].)

4“>4 (See, e.g., Idaho Code § 49-1405(b) & ©; Mo. Rev. Stat. § 577.039; Nev. Rev. Stat. § 484.791(1)(b) & ©; N.J. Rev. Stat. § 39:4-50.4a, par. 2; Ore. Rev. Stat. § 133.310(1)(e); 75 Pa. Cons. Stat. § 3731©; Wash. Rev. Code § 10.31.100(3)(d).)

5“>5 “1: to set and keep in motion or in action through application of some amount of force: a: to impart an onward or forward motion to by expenditure of physical force … b: to impart violent motion or great impetus to….” (See also Flournoy v. State (1962) 106 Ga. App. 756 [128 S.E.2d 528, 530] [“the word `drive,’ as used in statutes of this kind, usually denotes movement of the vehicle in some direction (see Webster’s Unabridged Dictionary) …”].)

6“>6 We observe that our state’s first “drunk driving” statute, enacted in 1913, made it illegal for an intoxicated person to “operate or drive” a vehicle. (Stats. 1913, ch. 326, § 17, p. 646.) This phasing was retained through various amendments until 1923, when the statute was revised to read as it does today, i.e., it is illegal for an intoxicated person to “drive a vehicle.” (Stats. 1923, ch. 266, § 112, p. 553.) Although we have discovered no authority explaining the reason for or significance of the 1923 revision, we note that as early as that year, courts construing “drunk driving” statutes drew distinctions between the terms “driving” and “operating,” and held that although “driving” requires evidence of movement, “operating” does not. (See Annot. (1926) 42 A.L.R. 1498, 1501; see also, post, pp. 764-767.)

7“>7 In 1938, the drafters of the Uniform Vehicle Code amended its language to read as it does today, making it illegal to “drive or be in actual physical control of any vehicle….” (See Nat. Com. on Uniform Traffic Laws and Ordinances, Traffic Laws Ann. (1979) § 11-902(a)(2), p. 255 [historical note], italics added; Uniform Vehicle Code and Model Traffic Ordinance (1987) § 11-902(a), p. 65 [present provision].)

8“>8 Accord, Thomas v. State (1976) 277 Md. 314 [353 A.2d 256]: “`[T]he term “driving” is encompassed within the term “operating”; but the reverse is not necessarily so. One may not drive a vehicle without operating it; but one may operate the engine or devices of a vehicle without driving it. Otherwise stated: while all driving is necessarily operation of a motor vehicle, not all operation is necessarily driving.’” (Id., at p. 259, quoting McDuell v. State (Del. 1967) 231 A.2d 265, 267.) See also, e.g.,Williams v. State (1965) 111 Ga. App. 588 [142 S.E.2d 409, 411] (“[T]he offense of operating an automobile while under the influence of intoxicants can be committed without driving it, but the offense of driving while under the influence can not be committed without operating the car.”);Jacobson v. State (Alaska 1976) 551 P.2d 935, 937; Gallagher v. Commonwealth (1964) 205 Va. 666 [139 S.E.2d 37, 39]; Bradam v. State (1950) 191 Tenn. 626 [235 S.W.2d 801, 802-803].

9“>9 Other states have construed “drive” the same way.

See, e.g., McDuell v. State, supra, 231 A.2d 265, 268 (construing former Del. Code Ann. tit. 21, § 4176); Poling v. State (1973) 156 Ind. App. 145 [295 N.E.2d 635, 637] (construing former Ind. Code § 9-4-1-54 (1971)); State v. Taft (1958) 143 W. Va. 365 [102 S.E.2d 152, 154] (construing W. Va. Code § 17C-5-2); see also Bradam v. State, supra, 235 S.W.2d 801, 803 (construing former Tenn. Code Ann. § 10827); Gallagher v. Commonwealth, supra, 139 S.E.2d 37, 39 (construing Va. Code Ann. § 18.1-54).

Wisconsin has codified this “common law definition” of “drive” in a statute that proscribes “driving or operating” a vehicle while intoxicated. (County of Milwaukee v. Proegler (1980) 95 Wis.2d 614 [291 N.W.2d 608].) The Proegler court noted that whereas an earlier version of the statute expressly required movement of a vehicle as an element of the statutory violation, “[i]n 1977, the legislature changed the statutory scheme to differentiate between `drive’ and `operate’….” The revised statute provides: “(a) `Drive’ means the exercise of physical control over the speed and direction of a motor vehicle while it is in motion. [¶] (b) `Operate’ means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.” (291 N.W.2d at p. 613, quoting Wis. Stat. § 346.63(3).)

The North Carolina Legislature has rejected the common law definition of “drive,” and broadly defined that term as including, inter alia, “operation.” Accordingly, North Carolina courts have upheld convictions under that state’s “driving” statute even in the absence of evidence of volitional vehicle movement. (State v. Fields (1985) 77 N.C. App. 404 [335 S.E.2d 69, 70], applying State v. Coker(1984) 312 N.C. 432 [323 S.E.2d 343, 347] [interpreting N.C. Gen. Stat. §§ 20-138.1(a), 20-4.01(7) & 20-4.01(25)].) The Maryland Legislature has similarly redefined “drive” as including, inter alia, “operation” of a vehicle. (Gore v. State (1988) 74 Md. App. 143 [536 A.2d 735, 739] [applying Md. Transp. Code Ann. § 21-902(a)].)

10“>10 The South Carolina statute remains the same today. As noted below, however, other legislatures have been quick to amend “driving” statutes following narrow interpretation of that word by reviewing courts.

11“>11 See Poling v. State, supra, 295 N.E.2d 635, 637 (construing prior “driving” statute, former Ind. Code § 9-4-1-54 (1971), as requiring evidence of volitional motion); and Rose v. State (1976) 168 Ind. App. 674 [345 N.E.2d 257, 259-260] (construing amended statute, Ind. Code § 9-4-1-54(b) (1971), as not requiring evidence of volitional motion).

12“>12 See Siff v. New York State Department of Motor Vehicles (1987) 123 A.D.2d 787 [513 N.Y.S.2d 482] (noting the legislature amended N.Y. Veh. & Traf. Law § 1194, subd. 1 “by substituting `operating’ for `driving’”).

13“>13 Former Delaware Code Annotated title 21, section 4111 prohibited an intoxicated person from “operating” a vehicle. In State v. Prichett (Del. 1961) 173 A.2d 886, the court construed that statute as permitting conviction of an intoxicated person who was slumped over the steering wheel of a motionless car with its engine running. (Id., at pp. 891-893, construing former statute.) Thereafter the legislature revised the statute, substituting the word “drive” for “operate.” (Former Del. Code Ann. tit. 21, § 4176.) The court in McDuell v. State, supra, 231 A.2d 265, noted the above-discussed distinction between the words “drive” and “operate” (id., at p. 267), and concluded: ̶

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