Whether or not a person was “driving” for the purposes of a DUI requires application of California Penal Code 836. Application of Penal Code section 836 to drunk driving cases nearly always involves a question of whether or not the defendant’s activities witnessed by the arresting officer (or other appropriate person) amounted to the act of “driving” as it is defined for these purposes.
As for what acts constitute “driving,” the California Supreme Court cleared up a lot of confusion with the decision in Mercer v. DMV. (1991) 53 C3d 753, 280 CR 745. That case held that “driving,” in the presence of the arresting officer, requires proof that the arresting officer witnessed volitional movement of the vehicle by the defendant. Thus, the Supreme Court held that if the vehicle is not observed moving, i.e., rolling, then it is not being driven. In order to operate a motor vehicle one does not have to actually move the car. California, however, has a “driving” only statute, and as Mercer points out, this requires actual movement of the vehicle.
It is essential to speak with a knowledgeable criminal defense attorney when facing DUI allegations. An attorney will ensure your constitutional rights are protected. If you or someone you love is being investigated or facing criminal charges in California, contact the experienced Orange County DUI defense attorneys at Wallin & Klarich today at (877) 466-5245 for a consultation of your case. We can help you.