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San Diego DUI Focus on the Driving Issue Element

by | Feb 23, 2014 | DUI Cases |

Driving.. it is one of the two elements in a San Diego DUI. It is sometimes overlooked. Often, it is not an issue because the officer stops a solo driver for a traffic stop. In some cases, the driving issue is the main issue. As a former prosecutor I can tell you these are the toughest cases for prosecutors in San Diego DUI. Why? Because it does not matter if the person is drinking or what blood alcohol level they are…..because they were not driving.

For example, police see a vehicle roll a stop sign.   They catch up the vehicle but not before it is stopped in a  driveway.  The officer sees three guys walking out of the car near the door of the house.  The officer calls all three back.  The officer pins the driving on the registered owner of the car.  The seat is adjusted to someone his height.  The keys are in his hands.

Well…. how about the fact the driver was shotgun and his buddy was the DD that evening.  How about the fact that when they got out of the car the DD gave the keys back to his buddy. That…..is a classic driving issue San Diego DUI.

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?

K) Did the officer check the engine for warmth?

L) Did the officer check the seat for height?

These are just a few of the slew of questions to a San Diego DUI arresting officer.


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.”
These cases need to extract the facts of what happened that night.

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 at 858-751-4384 or send an email to [email protected].

People v. Wilson (1985) 176 Cal. App. 3d Supp. 1 [222 Cal. Rptr. 540]

Appellate Department, Superior Court, Los Angeles.

[Crim. A. No. 22657. December 6, 1985.]

THE PEOPLE, Plaintiff and Respondent, v. RONALD ADRIAN WILSON, Defendant and Appellant.

(Opinion by Cooperman, P. J., with Bernstein and Shabo, JJ., concurring.)


James M. Steck for Defendant and Appellant.

Ira Reiner, District Attorney, Maurice H. Oppenheim and Donald J. Kaplan, Deputy District Attorneys, for Plaintiff and Respondent.



Defendant Ronald Wilson appeals from a judgment of conviction following a jury trial at which time he was found guilty as charged in count I of a misdemeanor complaint with violating Vehicle Code section 23152, subdivision (a) (driving under the influence of an alcoholic beverage). fn. 1

The reporter’s transcript of the trial proceedings reflects the following evidence:

California Highway Patrol Officer Jerelyn Albers and her partner, Officer Miranda, were on patrol on the 60 Freeway, in uniform and in a marked Highway Patrol vehicle, on September 15, 1983, at 3 a.m. At that time Officer Albers saw a vehicle “parked on the shoulder at an angle on the shoulder with the left rear portion of the vehicle partially into the No. 3 lane and the lights were all on.” The officers pulled in behind the parked vehicle and upon illuminating its interior they observed one person in the vehicle.

Officer Albers approached the parked vehicle and as she did so she noticed that its engine was running, the vehicle was in park and the air conditioner was running. Upon approaching the vehicle, Officer Albers saw defendant behind the wheel and asleep. To avoid the possibility of an accident, Officer Albers opened the vehicle door and turned off the engine before awakening defendant.

After awakening defendant, Officer Albers asked him to exit the vehicle. When he exited his vehicle, defendant walked right into the middle of the traffic lane. Officer Albers had to grab him and pull him back. The officer noted an odor of an alcoholic beverage about defendant’s person. Defendant [176 Cal. App. 3d Supp. 4] also exhibited other symptoms of intoxication, including slurred speech, disorientation, and bloodshot, watery eyes.

When Officer Albers felt that defendant was completely awake, she asked him some questions. She asked defendant if he had been drinking. He answered in the affirmative. In response to further questions, defendant said he did not know how much he had to drink but said that he began drinking about 7 p.m. and stopped about 10 p.m. Further response from defendant indicated that he was disoriented as to time and location. Defendant said that he was “out” approximately two hours. Apparently, defendant did not know how long he had been asleep but felt that he had been driving about two hours. The vehicle belonged to defendant. He further indicated that there was nothing mechanically wrong with his vehicle. The location of defendant’s vehicle was approximately one and a half miles from the nearest onramp.

Defendant was asked to perform a series of field sobriety tests. Officer Albers formed the opinion that defendant was under the influence of an alcoholic beverage based on his poor performance of those tests, the odor of an alcoholic beverage emanating from him and the other symptoms of intoxication he had exhibited.

Cynthia Wilson, defendant’s ex-wife, testified that she had dinner with defendant on the evening preceding his arrest and that between about 6:30 p.m. and about 9 or 10 p.m. defendant drank two beers. He left her apartment about 11 p.m. Wilson said defendant’s vehicle overheated but she did not recall defendant complaining about the vehicle overheating that evening.

Defendant testified in his own behalf. The substance of his testimony concerning what transpired until he left the company of his ex-wife was the same as her testimony. He then testified that he left his ex-wife’s apartment between 11 and 11:30 p.m. and drove around for about two hours because he was lost. During his drive, defendant stopped to purchase cigarettes and at that time bought a six-pack of beer. His vehicle overheated on the freeway and defendant pulled over to the side.

Defendant testified that he probably did not do well on the field sobriety tests for the following reasons: He was tired. He also had a back problem. Moreover, he wore his glasses during the finger-to-nose test although he is not supposed to wear his glasses for close work. Additionally, the spotlights of the police vehicle were shining in his eyes.

After defendant stopped by the side of the freeway he put on his flasher lights. A truck stopped and the driver, who was drinking a beer, offered to [176 Cal. App. 3d Supp. 5] help defendant. Defendant declined the offer. The driver then asked defendant if he wanted a beer. Defendant declined the offer of the truck driver and, instead, he gave the truck driver a beer. The truck driver and defendant each had about three beers and then the truck driver left.

About an hour and a half later, when his vehicle cooled down, defendant tried to start it, but he was unsuccessful. He had turned on his vehicle lights so he could see where to add coolant to the radiator and fell asleep at the wheel. Defendant stated that his vehicle heater was on, not the air conditioner. Defendant thought the officer believed the air conditioner was on because there was not enough fluid in the vehicle radiator to cause hot air to come out of the heater.

Defendant testified that when he began drinking beer by the side of the freeway, he had assumed he would not be able to drive and was planning on calling his roommate at 6 a.m. Defendant also testified that he told Officer Albers about his back problem. She did not ask him if he was having vehicle trouble.

Defendant conceded that he did not do well on the tests in part because of the effects of the beer.

Defendant’s position on appeal is threefold: (1) Vehicle Code section 23152, subdivision (a), is unconstitutionally vague for the reason that the word “drive,” specifically its derivative, “driving,” fails to give a person adequate notice of what is proscribed; (2) The trial court committed reversible error by failing to instruct on the definition of “driving”; and (3) There is insufficient evidence to show that defendant had been “driving” while under the influence.

We find no merit to defendant’s position and affirm.

[1a] Initially, we reject defendant’s contention that the word “drive” as used in Vehicle Code section 23152, subdivision (a) fn. 2 is impermissibly vague. [2] “A statute or ordinance violates fundamental due process if it requires or prohibits the doing of an act with such vagueness that a person of common intelligence must guess at its meaning. It must be sufficiently definite to provide a standard of conduct, or notice, and a standard for ascertaining guilt. (Bowland v. Municipal Court (1976) 18 Cal. 3d 479, 491 [134 Cal.Rptr. 630, 556 P.2d 1081]; People v. Barksdale (1972) 8 Cal. 3d 320, 327[176 Cal. App. 3d Supp. 6] [105 Cal.Rptr. 1, 503 P.2d 257].) However, a statute is presumed valid and courts will uphold it ‘if its terms may be made reasonably certain by reference to other definable sources.’ (People v. Superior Court Hartway) (1977)19 Cal. 3d 338, 345 [138 Cal.Rptr. 66, 562 P.2d 1315].) (People v. Katrinak (1982) 136 Cal. App. 3d 145, 156 [185 Cal.Rptr. 869].)

Such sources include the dictionary definition of the word or phrase in question. (Ibid) In this context, Webster’s Third New International Dictionary (1976) defines the transitive verb “to drive” as meaning “to operate the mechanism and controls and direct the course of (… a motor vehicle …).” (Id, at p. 692.) Moreover, the noun “driving” is defined as the “management of an automobile or other vehicle on the road.” (Ibid)

[1b] From the foregoing, we conclude that a reasonable person would construe the phrase “to drive a vehicle” in subdivision (a) of section 23152 of the Vehicle Code as encompassing any act or action which is necessary to operate the mechanism and controls and direct the course of a motor vehicle. As construed by reference to the dictionary definitions, the word “drive” and its derivatives are not constitutionally infirm for vagueness. (See also People v. Jordan (1977) 75 Cal. App. 3d Supp. 1, 8 [142 Cal.Rptr. 401].)

3 We next reject defendant’s related contention that the trial court committed reversible error by refusing to instruct the jury on the definition of “driving.”

“The language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction …. If the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in the statutory language. [Citations.]” (People v. Jones (1971) 19 Cal. App. 3d 437, 447 [96 Cal.Rptr. 795].) “Ordinary words and phrases in statutes require no definition because they are presumed to be understood by jurors. [Citations.]” (People v. Stewart (1979) 89 Cal. App. 3d 992, 999 [153 Cal.Rptr. 242].)

In the present case the court instructed the jury pursuant to CALJIC No. 16.830 (rev.ed. 1981), which defines the offense in question in the language of Vehicle Code section 23152, subdivision (a). The record reflects that there was no request from the jury for clarification or explanation in this regard. Accordingly, we conclude that it was not error for the court to refuse to instruct the jury concerning the definition of the word “drive” or its derivative, “driving,” which are words in common usage and are ordinarily understood. [176 Cal. App. 3d Supp. 7]
4 We also reject defendant’s remaining contention that there was insufficient evidence to establish that he had been “driving” or that he had been intoxicated at the time of driving.

“The question as to whether defendant drove the vehicle is a question of fact for the jury (People v. Quarles, 123 Cal. App. 2d 1 [266 P.2d 68]) …. An appellate court will assume every fact and inference which the trier of fact could reasonably have deduced from the evidence (People v. Powell, 187 Cal. App. 2d 709, 712 [10 Cal.Rptr. 116]) …. ‘On appeal the evidence and inference must be viewed in a light most favorable to the respondent …. To warrant reversal, it must be made clearly to appear that, on no hypothesis, is there sufficient substantial evidence to support the conclusion of the lower court.’ (People v. Moseley 240 Cal. App. 2d 859, 863 [50 Cal.Rptr. 67], citing cases.)” (People v. Hanggi (1968) 265 Cal. App. 2d Supp. 969, 971-972 [70 Cal.Rptr. 540].)

The defendant in Hanggi, as the defendant here, urged that there was insufficient evidence to support a finding that he had been “driving.” In rejecting that contention, the Hanggi court announced: “… we conclude that there was ample evidence from which the jury could have inferred that the defendant had been driving his vehicle on the public highway at a time when he was intoxicated. From the combination of circumstances—defendant’s sitting in a vehicle in the center of the street—behind the wheel—engine running—lights on, it can be inferred that defendant must have placed himself in such position, and that he accomplished this by driving the car to the place at which he was found. Defendant suggests various possibilities, such as a friend driving the car to the place where found and the defendant thereafter replacing him, but unable to drive further. He also suggests the possibility that defendant had been visiting in the area, had too much to drink, got into the car intending to drive but was unable to go further. It seems unlikely that in either situation the car would have been left parked in the middle of the street, straddling the traffic lanes and facing generally at right angles to the street. Suffice it to say that the jury apparently discarded these possibilities as being unreasonable and adopted the more likely deduction that defendant had driven himself to the area and was then unable to continue.” (Id, at p. 972;cf. People v. Nelson (1983) 140 Cal. App. 3d Supp. 1, 3-4 [189 Cal.Rptr. 845]; People v. Kelly (1937) 27 Cal. App. 2d Supp. 771, 773 [70 P.2d 276].)

Similarly, we also conclude that there is substantial evidence from which the jury here could have inferred that: (1) It was defendant who drove the vehicle on the public highway to where it was stopped; and (2) defendant was intoxicated at the time. [176 Cal. App. 3d Supp. 8]

Although the vehicle was in the “park” gear with “the brakes … on,” the vehicle was stopped partly on the shoulder of the 60 Freeway at an angle with its left rear portion partially intruding into the No. 3 lane. Clearly, this was not a normal parking place or position for a vehicle to be stopped. Moreover, the vehicle did not simply materialize at that location. Obviously, someone drove it there.

That someone was defendant, according to the jury. Defendant was the sole occupant of the vehicle. He was found seated in the driver’s seat. At no time did he claim that anyone else had driven the vehicle to that location, and the vehicle belonged to defendant.

There is abundant evidence in the record that defendant had been drinking prior to his stopping the vehicle on the shoulder of the freeway. Also, his disorientation and poor performance of the field sobriety tests constitute ample evidence from which the jury could infer that his driving ability was impaired.

We disagree with defendant’s assertion that there can be no conviction for driving under the influence unless there was at least a “slight movement” of the vehicle in question at the time the officers confronted defendant. Defendant misapprehends the context in which the issue of a “slight movement” of the vehicle arises.

As a general rule, a peace officer can only make a lawful warrantless arrest for a misdemeanor offense if he has reasonable cause to believe that it is being committed in his presence. fn. 3 (Pen. Code, § 836, subd. (1).) With regard to the offense of driving under the influence of an alcoholic beverage or drug (Veh. Code § 23152, subd. (a)), a “slight movement” of the vehicle in the officer’s presence has been a determinative factor in concluding whether or not a defendant was “driving” in the presence of the officer. (Henslee v. DMV (1985) 168 Cal. App. 3d 445, 450-453 [214 Cal.Rptr. 249]; see also People v. Engleman (1981) 116 Cal. App. 3d Supp. 14, 18-20 [172 Cal.Rptr. 474].) In other words, a “slight movement” of the vehicle constitutes direct evidence that the vehicle was being “driven.” (Cf. People v. Kelley, supra, 27 Cal. App. 2d Supp. 771, 772-774.) [176 Cal. App. 3d Supp. 9]

On the other hand, where the sufficiency of the evidence to support the judgment is in question, as contrasted with the validity of a defendant’s arrest, fn. 4 it is clear that the existence of evidence establishing a “slight movement” of the vehicle does not present a problem. fn. 5 In the absence of such direct evidence of “driving”, the element of “driving” may nonetheless be established at trial through circumstantial evidence, which is the case here. (People v. Hanggi, supra, 265 Cal. App. 2d Supp. at p. 972; People v. Garcia (1983) 149 Cal. App. 3d Supp. 50, 53-54 [197 Cal.Rptr. 277]; seeBurg v. Municipal Court (1983) 35 Cal. 3d 257, fn. 10 [198 Cal.Rptr. 145, 673 P.2d 732]; see also People v. Smith (1967) 253 Cal. App. 2d 711, 714-715 [61 Cal.Rptr. 557].)

Defendant’s assertion that there is insufficient evidence to show that he was intoxicated while driving is grounded in his version of the facts. In other words, he claims that he was sober at the time he was driving and stopped his vehicle, since the alcoholic beverages he had consumed earlier had already dissipated, and that his intoxicated state when confronted by the officers two hours later was due to the beer he had consumed after having stopped his vehicle. The jury obviously disbelieved his version, which it was entitled to do, in finding him guilty of driving under the influence of an alcoholic beverage. We cannot reweigh credibility on appeal. (People v. French (1978) 77 Cal. App. 3d 511, 523 [143 Cal.Rptr. 782].

The judgment is affirmed.

Bernstein, J., and Shabo, J., concurred.

FN 1. Prior to trial defendant admitted to having suffered a prior conviction of that offense. Apparently, count II, which charged defendant with a violation of Vehicle Code section 23152, subdivision (b) (driving with a .10 percent or more blood alcohol level) was dismissed.

FN 2. Subdivision (a) of that section reads: “It is unlawful for any person who is under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug, to drive a vehicle.”

FN 3. The two statutory exceptions are set out in Vehicle Code section 40300.5, which reads: “Notwithstanding any other provision of law, a peace officer may, without a warrant, arrest a person who is (1) involved in a traffic accident or (2) observed by the 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, or under the combined influence of an alcoholic beverage and any drug.” The second exception above would appear to be applicable to the facts here. However, that exception was not added until after the date of defendant’s arrest, and thus, is not applicable. (See Stats. 1984, ch. 722, § 1, pp. ___—___.)

FN 4. Defendant does not challenge the legality of his arrest. Accordingly, that issue is not before us. Parenthetically, we point out that the only sanction involved where the arrest is established as being illegal, e.g., the offense was not committed in the officer’s presence, is the suppression of evidence, such as a chemical test, obtained following the arrest. (People v. Engleman, supra, 116 Cal. App. 3d at pp. Supp. 19-20. People v. Jordan, supra, 75 Cal. App. 3d at pp. Supp. 13-14.)

FN 5. Although the court in Jordan, supra, announced that “[t]o warrant conviction only slight movement is necessary ….” (Id, at p. Supp. 8), we conclude that the Jordan court misspoke. The Jordan case involved a People’s appeal challenging the lower court’s order suppressing evidence of the defendant’s chemical test on the basis that defendant had not been “driving” a “motor vehicle”. Defendant had not been convicted as of the time the appeal was taken.

Music v. Department of Motor Vehicles (1990) 221 Cal. App. 3d 841 [270 Cal. Rptr. 692]

[No. A047791. First Dist., Div. Four. June 26, 1990.]

GARY WILLIAM MUSIC, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent.

(Superior Court of Humboldt County, No. 85074, John E. Buffington, Judge.)

(Opinion by Poch©, J., with Anderson, P. J., and Perley, J., concurring.)


Les Scher for Plaintiff and Appellant.

John K. Van de Kamp, Attorney General, Richard D. Martland, Chief Assistant Attorney General, N. Eugene Hill, Assistant Attorney General, Jose Guerrero and Mara Faust, Deputy Attorneys General, for Defendant and Respondent.



1 (See fn. 2.) Appellant Gary William Music appeals from a judgmentfn. 1 denying his petition for writ of mandatefn. 2 seeking to [221 Cal. App. 3d 844] overturn an order of respondent, Department of Motor Vehicles, suspending his driver’s license for six months for failing to submit to a chemical test when requested to do so by a police officer. (Veh. Code, §§ 13353, subd. (a); 23157.)fn. 3 The controlling issue on appeal is whether appellant was validly arrested for driving under the influence in that the arresting officer did not actually witness an act of driving a motor vehicle. We hold that under such circumstances, a warrantless arrest is invalid. Because a valid arrest is a condition precedent under the implied consent law for suspending a driving privilege (§ 13353, subd. (b); Padilla v. Meese (1986) 184 Cal. App. 3d 1022, 1026 [229 Cal.Rptr. 310]), we reverse.

A. The Evidence

At approximately 1:40 a.m., on a cold and rainy November 8, 1988, California Highway Patrol Officer Kevin James O’Connor spotted appellant’s truck parked in a parking stall in front of the Blue Room Bar on the northbound shoulder of Redwood Drive in Garberville.fn. 4 The engine was running, exhaust was coming out of the exhaust pipe, the yellow parking lights were on, as was the radio, and the window was halfway open, and appellant was “slumped” over the steering wheel. Over the course of the next hour, O’Connor passed by the truck two more times; each time the truck and appellant were in the same condition. “Concerned,” O’Connor decided to check on the driver.

O’Connor woke appellant; his eyes were red and glassy, his speech was slow and slurred, there was a strong odor of alcohol on his breath and he appeared confused. Appellant told O’Connor he had been drinking whiskey and “coke” and decided to sleep in the truck “until he was okay to drive home.” Appellant claimed to be following a normal practice.

O’Connor asked appellant to turn off the engine. According to O’Connor, appellant was disoriented and “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.” Afraid appellant might put the truck into reverse and roll into his patrol car parked immediately behind the truck, O’Connor reached in and turned off the engine. Appellant was asked to leave the truck, was given and failed a number of field sobriety tests, and was placed under arrest. At the police station, and after being advised of the consequences for doing so, appellant refused to submit to one of the three chemical tests. [221 Cal. App. 3d 845]

Appellant testified he drove his truck to town in the early afternoon, parked in front of the Blue Room (which was closed), and drank with friends in Garberville’s other two bars. He walked back to the truck, and slept for “several hours” before he was arrested. Because it was raining, he turned on the engine so the heater would run. Appellant admitted being intoxicated but denied being slumped over the steering wheel: “I was laying in [sic] the seat of the truck.”

On cross, Officer O’Connor admitted that at no time did he see appellant actually drive the truck down the street. The following colloquy with appellant’s trial attorney is instructive:

“[Counsel]: So he told you in essence that … he had come out of the Blue Room and fallen asleep in the truck.

“Officer O’connor: Yes.

“[Counsel]: So then you did not have reason to believe that he was driving the truck.

“Officer O’connor: Correct.

“[Counsel]: And yet you placed him under arrest for driving under the influence?

“Officer O’connor: Yes.

“ * * *

“[Counsel]: Did Mr. Music ask you any questions as to why you were making him do this when in fact he was not driving the vehicle but sleeping?

“Officer O’connor: As I recall he did. He was concerned with that and I told him that his vehicle was in the road, his vehicle was running, the lights were on and I was concerned about especially his statement of well I do this all the time, I sleep in the car until I feel I’m okay to drive home.

“[Counsel]: Was it reasonable to believe that he had the truck running so the heat would be on?

“Officer O’connor: I’m sure it was. [221 Cal. App. 3d 846]

“[Counsel]: Especially since the window was down, you seem to think it was crazy that the window was down because it was raining.

“Officer O’connor: Yes.

“[Counsel]: Okay. Did … he actually tell you that he had not been driving the vehicle?

“Officer O’connor: I don’t recall, I’m sure he did though.

“ * * *

“[Counsel]: Okay so you never saw him driving and you just said that you really didn’t have a reasonable belief that he was driving and I’m having trouble understanding under those circumstances why you told him he had to take either a field sobriety test or one of the tests under the [Vehicle Code] … when he hadn’t been driving a vehicle.

“Officer O’connor: Okay well mainly … if a person is in or about their vehicle and he’s in control of that vehicle and the vehicle is running and the vehicle is in the road, on the roadway, he is in control of the vehicle and there again what concerned me at that point was his own statement of his determination of when he would be okay to drive and as I talked to him, he was reaching and trying to get the gearshift in gear. At that point, his apparent intoxication, I was concerned that he would continue and go out on the road.

“[Counsel]: So you were taking more of a preventative measure is what you’re saying.

“Officer O’connor: Well the preventative-yes it was preventative in one point but at the same time he is on the road and in control of his own vehicle, the vehicle is running, it’s on the road and there’s a lot of support there and I can’t sit here and give you a particular case but I’m sure I can research it and dig that up.”


In affirming the license revocation, the hearing officer made the four findings required by section 13353, subdivision (b):fn. 5 (1) Officer O’Connor [221 Cal. App. 3d 847]had reasonable cause to believe that appellant had been driving a motor vehicle in violation of sections 23152 or 23153 (driving under the influence of intoxicating liquor or drugs); (2) appellant was lawfully arrested; (3) appellant was advised that if he refused to submit to a chemical test his driving privileges would be suspended for six months; and (4) appellant refused to submit to a chemical test. With respect to the driving aspect, the hearing officer was impressed with the fact that appellant “attempted to shift gears and have the car move while the motor was running.”

Exercising its independent judgment (Berlinghieri v. Department of Motor Vehicles, supra, 33 Cal. 3d at p. 395; Daly v. Department of Motor Vehicles (1986) 187 Cal. App. 3d 257, 261 [232 Cal.Rptr. 7]; Hughes v. Alexis, supra, 170 Cal. App. 3d at p. 806), the superior court affirmed the revocation and remarked: “The facts could be interpreted to support one, [of two], conclusions: [¶] 1. The vehicle was parked, for one hour, with the lights on, engine running, heater on and the defendant slumped over the wheel. The vehicle could be interpreted to not have moved from where Mr. Music parked it earlier in the day in accordance with his testimony; or [¶] 2. The vehicle was parked, in the conditioned [sic] listed above, after having been moved or driven by Mr. Music contrary to his testimony. [¶] The Hearing Officer found the second version to be the most likely explanation. This court agrees.”

2 An essential prerequisite for the application of the implied consent law is a lawful arrest for driving under the influence. (§ 13353, subd. (b); see e.g., Mueller v. Department of Motor Vehicles (1985) 163 Cal. App. 3d 681, 684 [210 Cal.Rptr. 14]; Henslee v. Department of Motor Vehicles (1985) 168 Cal. App. 3d 445, 451 [214 Cal.Rptr. 249]; Buttimer v. Alexis (1983) 146 Cal. App. 3d 754, 758 [194 Cal.Rptr. 603].) Stated another way, a driver’s license cannot be suspended under the implied consent law if the arrest is unlawful. (Padilla v. Meese, supra, 184 Cal. App. 3d at p. 1026.)

3 In order to make a warrantless arrest for a misdemeanor the arresting officer must have reasonable cause to believe that the person committed the offense in his presence. (Pen. Code, § 836, subd. 1.)fn. 6 An arrest for [221 Cal. App. 3d 848] misdemeanor drunk driving, therefore, is invalid unless the police officer witnesses or perceives the act of driving under the influence. (Padilla v. Meese, supra, 184 Cal. App. 3d at p. 1026; Henslee v. Department of Motor Vehicles, supra, 168 Cal. App. 3d at p. 451.) “Whether the offense is committed in the officer’s presence is to be determined by the events observable to the officer at the time of the arrest. ‘If the officer cannot testify, based on his or her senses, to acts which constitute every material element of the misdemeanor, it cannot be said that the officer has reasonable cause to believe that the misdemeanor was committed in his presence.’ [Citation omitted.]” (People v. Welsch (1984) 151 Cal. App. 3d 1038, 1042 [199 Cal.Rptr. 87] [italics in original]; accord Padilla v. Meese, supra, 184 Cal. App. 3d at p. 1027.) As put plainly by Justice Sparks in Padilla v. Meese: “In order to perceive the act of illegally driving a vehicle while under the influence of intoxicating liquor the officer must be able to detect the driving through one of his senses. Thus in order to make a valid arrest for misdemeanor drunk driving it is necessary that the officer be present at the scene where the driving occurred so that he can perceive it.” (Id., 184 Cal. App. 3d at p. 1027.)

4 If one views this case as did the trial court judge, then clearly the arrest was invalid. Under that scenario, appellant drove his truck before he was even spotted by Officer O’Connor. Because the officer was not and could not have been present or have witnessed the driving, Officer O’Connor could not legally arrest appellant for the misdemeanor crime. (People v. Engleman (1981) 116 Cal. App. 3d Supp. 14, 19 [172 Cal.Rptr. 474].) Perhaps aware of this problem with the trial court’s analysis, respondent does not bother to advance the trial court’s reasoning in support of the judgment. Instead, respondent argues that O’Connor did witness the driving, and that the act of driving occurred when appellant, with engine running, and lights on, attempted to turn off the engine but in confusion hit the gear shift. Primary reliance for this novel proposition is placed upon a rather expansive definition of the term “driving” rendered by the Court of Appeal in Henslee v. Department of Motor Vehicles, supra, 168 Cal. App. 3d 445.

In Henslee, the arresting officer came upon a parked vehicle facing southbound in a northbound lane of a city street. The engine was running, the lights were on, and the driver was asleep behind the wheel. The officer woke up the driver who proceeded to put the transmission into “ ‘drive.’ “ The car traveled several inches before the officer could “reach in and physically stop” the driver “from proceeding.” The driver “repeated this conduct two or three more times” but was stopped each time by the police officer. (Henslee, supra, 168 Cal. App. 3d at p. 448.)

On these facts, the court had no hesitation in finding a lawful warrantless arrest for driving under the influence: “In our opinion the term ‘drive’ [221 Cal. App. 3d 849]within the meaning of [Veh. Code § 23152, subd. (a)] includes the situation where, as here, an intoxicated individual actively asserts control over a vehicle and takes every step necessary to resume travel along the public road. Accordingly, we hold that as a matter of law respondent ‘drove’ her vehicle in the presence of Officer Viveiros and therefore find her arrest for driving while intoxicated was lawful.” (Henslee v. Department of Motor Vehicles, supra, 168 Cal. App. 3d at pp. 451-452 [italics added].)fn. 7

In so holding, however, the court factually distinguished People v. Engleman, supra, 116 Cal. App. 3d Supp. 14, a case almost on all fours with this one.

In Engleman, the police found the defendant at 3 in the morning, asleep behind the wheel of his car parked on the shoulder of the road. The engine was running, but the car was in park. The defendant did not awaken until the officer rapped on the window for several minutes. The defendant was arrested for driving under the influence and then failed a breath test, the results of which were admitted into evidence at trial. On appeal, the appellate department of the superior court held the breath tests were inadmissible because they were the product of an illegal warrantless arrest: “A peace officer may make a lawful warrantless arrest for a misdemeanor only if he has reasonable cause to believe that it is being committed in his presence. (Pen. Code, § 836, subd. 1.) Defendant did not drive his car in the presence of the officers and therefore could not be validly arrested for this offense.” (People v. Engleman, supra, 116 Cal. App. 3d at p. Supp. 19.)

In distinguishing Engleman, the Henslee court noted that the driver before it had parked “the wrong way in a traffic lane and, unlike the defendant in Engleman, she actively placed the car in ‘drive’ and would have continued but for the officer’s quick actions.” (Henslee, supra, 168 Cal. App. 3d 445, 453.) But as noted by the court in Padilla v. Meese, “the better distinction” is that in Henslee the driver actually moved the car in the officer’s presence, whereas in Engleman (like the case at hand) no movement[221 Cal. App. 3d 850] occurred in the officer’s presence. (Padilla v. Meese, supra, 184 Cal. App. 3d 1022, 1028.)

Padilla, like Engleman, is factually more akin to this case than is Henslee. In Padilla, a highway patrol officer received a call from an inspector at an agricultural inspection station to the effect that he had stopped a car whose driver was intoxicated. When the officer arrived at the inspection station, he found Padilla sitting in the driver’s seat with the engine running. The issue presented was whether the highway patrol officer was present during the commission of the misdemeanor drunk driving so that he could validly arrest Padilla without a warrant. Discussing Henslee, the court stated: “It is true that the driver in Henslee only moved the car slightly. But the movement need not be extensive; even a matter of a few inches will suffice to constitute driving. In our view, if the driver does not move the vehicle in the officer’s presence, the offense is not committed in his presence. Here Officer Nagel conceded that no driving occurred in his presence; the car, although running, was not moved. We are thus constrained to agree that the offense did not occur in Officer Nagel’s presence for purposes of Penal Code section 836. [Citations.]” (Padilla v. Meese, supra, 184 Cal. App. 3d 1022, 1029 [italics added].)

Thus as we read Padilla, Engleman, and Henslee, if the driver does not move the vehicle in the officer’s presence at least a few inches, the offense of driving under the influence has not occurred in the officer’s presence. Any ensuing warrantless arrest is invalid.

Here, the evidence shows without contradiction that appellant did not move the truck in the officer’s presence. In fact, appellant did not even manage to put the truck in gear in the officer’s presence. Officer O’Connor’s prudent action of turning off the engine ensured that appellant did not move the truck: it also prevented the crime from occurring in his presence. The resulting arrest therefore violated the presence requirement of Penal Code section 836, subdivision 1.fn. 8 [221 Cal. App. 3d 851]

Appellant’s arrest was therefore illegal, unless some exception to the presence requirement applies. The only exception advanced by respondent is that contained in section 40300.5, namely, a police officer may arrest without a warrant if he observes an obviously intoxicated person “in or about a vehicle which is obstructing a roadway.“fn. 9 But here, the uncontradicted evidence shows that appellant’s truck was not obstructing a roadway. Instead, it was properly parked in a parking stall, extending only a few inches past the painted line. (See fn. 4, ante.) By even the most liberal interpretation (cf. § 40300.6)fn. 10 obstruction of a roadway did not occur here.

We therefore conclude on this undisputed record that Officer O’Connor did not legally arrest appellant for driving under the influence. The implied consent statute and its penalty for noncompliance may not be applied to appellant.

The judgment is reversed and the cause is remanded with directions to issue a peremptory writ of mandate directing the Department of Motor Vehicles to set aside its order of suspension. Appellant to recover his costs on appeal.

Anderson, P. J., and Perley, J., concurred.

FN 1. The notice of appeal was filed before the final judgment was rendered, but after the court had rendered its intended decision, referred to by the court as its “ruling.” We construe the premature notice of appeal as being an appeal from the subsequently rendered final judgment of December 14, 1989. (Cal. Rules of Court, rule 2©.)

FN 2. Although the petition filed by appellant was labeled traditional mandamus (Code Civ. Proc., § 1085), administrative mandamus (Code Civ. Proc., § 1094.5) is the appropriate method to review the validity of a license suspension under the implied consent laws. (See, e.g., Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal. 3d 392, 395 [188 Cal.Rptr. 891, 657 P.2d 383]; Hughes v. Alexis (1985) 170 Cal. App. 3d 800, 812 [216 Cal.Rptr. 550]; Sinetos v. Department of Motor Vehicles (1984) 160 Cal. App. 3d 1172, 1174 [207 Cal.Rptr. 207]; see generally Cal. Administrative Mandamus (Cont.Ed.Bar, 2d ed. 1989) § 3.4, p. 73.) The trial court properly treated the proceeding as one for administrative, not traditional, mandamus. (Cf. Anton v. San Antonio Community Hosp. (1977) 19 Cal. 3d 802, 813 [140 Cal.Rptr. 442, 567 P.2d 1162] [traditional mandamus treated as proceeding under Code Civ. Proc., § 1094.5]; Mahdavi v. Fair Employment Practice Com. (1977) 67 Cal. App. 3d 326, 336 [136 Cal.Rptr. 421] [administrative mandamus petition treated as petition for traditional mandamus under Code Civ. Proc., § 1085].)

FN 3. Unless otherwise indicated, all further statutory references are to the Vehicle Code.

FN 4. According to the police report the truck “extended a few inches past the end of the white painted line of the parking stalls.”

FN 5. At all relevant times to this proceeding, subdivision (b) of section 13353 provided in pertinent part: “For purposes of this section, the scope of the hearing shall cover the issues of whether the peace officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23152 or 23153, whether the person was placed under arrest, whether the person refused to submit to, or did not complete, the test or tests 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, or did not complete, the test or tests.”

FN 6. Penal Code section 836 provides in pertinent part: “A peace officer may … without a warrant, arrest a person: [¶] 1. When he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence. …”

FN 7. As noted in Padilla v. Meese, supra, 184 Cal. App. 3d 1022, the definition of driving used in Henslee is normally the definition given to operating a vehicle. (Id. at p. 1028, fn. 1.) “The reason that the term ‘operating’ is broader than driving is that, as defined in nearly all of the cases, operating does not require that the vehicle be in motion. Thus, it has been held that the term ‘operate’ is not limited to moving a vehicle from one place to another, that a person may be convicted of operating a motor vehicle without it necessarily being shown that the automobile was actually in motion or even had the engine going, and that ‘to operate’ is not limited to a state of motion, but also includes, under the management theory, stops and parking on the highway as they are to be fairly regarded as a necessary incident to the operation.” (Annot., What Constitutes Driving, Operating, or Being in Control of Motor Vehicle for Purposes of Driving While Intoxicated Statute or Ordinance (1979) 93 A.L.R.3d 7, 16 [fns. omitted].)

FN 8. Misplaced is respondent’s reliance upon People v. Wilson (1985) 176 Cal. App. 3d Supp. 1 [222 Cal.Rptr. 540]. At issue in Wilson was not the validity of a warrantless arrest but rather the sufficiency of the evidence to support a conviction of driving under the influence. Carefully distinguishing the former situation, which requires slight movement of the vehicle in the officer’s presence, the Wilson court held that the element of driving for purposes of proving the offense at trial could be established by circumstantial evidence. (At p. Supp. 9 [text and fn. 4].) Wilson does not support respondent’s view that appellant drove the truck in Officer O’Connor’s presence within the meaning of Penal Code section 836.

Equally distinguishable is the recent case of People v. Hernandez (1990) 219 Cal. App. 3d 1177 [269 Cal.Rptr. 21], which addressed the sufficiency of the evidence to support a conviction under section 23153 (driving under the influence and neglecting a duty imposed by law which proximately causes bodily injury to another). There, the defendant’s truck stalled while on the interstate. Instead of moving to the shoulder, the defendant attempted to restart the vehicle while it still was moving. The truck came to a complete stop and was subsequently hit from behind, causing injuries to the driver and passenger of that car. The court had no hesitation in finding that the defendant was “driving” up until the time the truck came to a complete stop: “While the truck was in motion and [defendant] maintained control of it, he was posing a threat to public safety and thus, was driving within the meaning of section 23153.” (Id. at p. 1184.) Nothing we have said today would lead to a contrary conclusion in Hernandez.

FN 9. Section 40300.5 provides: “Notwithstanding any other provision of law, a peace officer may, without a warrant, arrest a person who is (1) involved in a traffic accident or (2) observed by the 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, or under the combined influence of an alcoholic beverage and any drug.”

FN 10. Section 40300.6 provides: “Section 40300.5 shall be liberally interpreted to further safe roads and the control of driving while under the influence of an alcoholic beverage or any drug in order to permit arrests to be made pursuant to that section within a reasonable time and distance away from the scene of a traffic accident. …”


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