What is Considered Driving?

Driving a Vehicle: You don't have to be operating, moving or driving a car to be arrested and convicted of a DUI!

For many persons arrested for driving under the influence the question of driving becomes an issue. Is someone sleeping in their car "driving" according to the law?

What about someone who is outside of their car sitting on the fender, or someone with the keys in the ignition, are they "driving" their car?

These and many other similar and not so similar circumstances have forced the court to come up with a definition of what constitutes "driving".

Driving has two accepted components:

The operation of a vehicle and the controling a vehicle.

Operating a vehicle is what is common referred to is DRIVING or having the car MOVING. Seems simple enough, but it isn't.

Moving is not the only element in driving. Controling is the other element and this has to do with the keys (controling).

If you have the keys you have CONTROL.

I presently have a gentleman in my class convicted of driving when he was sleeping in his car, legally parked at a Bart Station. He says he was dropped off by his friends and decided NOT to drive home since he realized, after being dropped off, that he was unable to safely drive home. He was convicted because "if it looks like a duck, smells like a duck, it must be a duck" (1+1=2). Like it or not YOU DON'T HAVE TO BE OPERATING OR MOVING OR DRIVING A CAR TO BE ARRESTED AND CONVICTED OF A DUI!

Circumstantial Presence Evidence

People v Bellomo (1984) . . . there was no need to decide whether or not the defendant was driving in the presence of the arresting officer when the defendant was found asleep behind the wheel, with the engine running, in a traffic lane, awaiting a red light . . . guilty (40300.5)......that was 84' and it just evolved into.......if you've got the keys...and you are in the vehicle or about the vehicle and "if it looks like a duck, smells like a duck, it must be a duck".

Have you been arrested for drunk driving and you were not behind the wheel of your car?

Also See:

High Court Affirms Conviction

Tags: Court Rulings

Posted Saturday, March 01, 2008
Filed in Court Rulings | Permalink | Comments (20)

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Not in the car

Posted by Logan Newman at 2008-05-19 21:25

I was arrested this past weekend 5/17/08 for DUI. I was on my way home. I was in the passenger seat and a friend was driving. We got two flat tires from something in the road. He put the flashers on and went to use the phone. I waited on the tailgate. (not realizing the keys were in the ignition) I sat there on the tailgate waiting for him to return. Police show up and arrest me for DUI and about 3 other charges. This is in Arizona.

Out of the car, friend was driving, and still arrested

Posted by Bren Sandberg at 2008-05-22 22:04

I completely understand. DUIs/OVI are out of control. One's constitutional rights do not exist in a DUI/OVI arrest. My nephew was at a party and was drinking. At some point he walked around asking if anyone knew how to drive a stick/manual transmission. One of his friends who had not been drinking, offered to take my nephew to his girlfriend's house a few miles away. Along the way the car stalled at a red light on Main St. It was storming, sleeting. My nephew and his friend got out of the car; my nephew tried calling his girlfriend but didn't get her. He told his friend to walk back to the party and that he would call a tow truck. Seconds later a cop showed up and arrested my nephew for DUI/OVI. His jury trial is in two weeks. The lawyer's fee is $5000. My nephew did EVERYTHING RIGHT. EVERYTHING. And now his fate will soon be in the hands of a jury; he's facing a jail sentence, fines, etc. for doing the right thing. The responsible thing. Like your case, he's guilty of doing the right thing. This is in Wisconsin.

Where *is* it okay to drink?

Posted by june at 2008-06-18 19:12

My nephew was arrested for sleeping in his parked (ignition off, ice cold engine), van conversion, which is like a mini motor home. He felt he shouldn't drive because he'd been drinking, so he got in his van and went to sleep, but it was parked in a wrong spot and the police stopped by because of that. I suppose the police must be told they are just supposed to make the arrest if someone's drunk and let the court sort it out, but to wake someone up and arrest them seems weird... this is a crazy waste of taxpayer dollars and my nephew's $2500 plu$ plu$ to defend himself.

Disagree

Posted by Richard Middlebrook at 2008-10-08 06:14

I disagree with the analysis for California. In California, control is circumstantial evidence of driving, but is not driving. I can't speak for all states, but in California the law is clear: Volitional Movement of the vehicle is necessary. I have won tens of cases on these issues. Bellomo used all those elements listed as CIRCUMSTANTIAL evidence of driving. He was IN a traffic lane. He BEHIND the wheel. He had his ENGINE running. He was the ONLY one in or near the car. He was the REGISTERED owner. The farther you get away, the less evidence there is of volitional movement (i.e., less chance of being found under the influence WHILE driving). I would fight these cases without end.

Am I the only sane person left?

Posted by chris colbert at 2008-11-16 01:58

Anyone who needs the word driving explained to them, probably shouldn't be expected to make decisions that effect countless lives.

But here it is:

DRIVING: making a car move by depressing the accelerator, turning the steering wheel, and depressing the brake pedal. The accelerator causes the car to increase velocity, turning the steering wheel causes the car to change lateral acceleration, and depressing the brake pedal causes the car to decrease velocity in proportion to pressure applied.

Hope this clears things up.

Wish it were that easy...

Posted by Richard Middlebrook at 2008-11-16 06:56

You may be the last sane person. Unfortunately, the courts, in order to stretch the definition of driving so as to include people who would not be DRIVING under the influence, allow the arrest and conviction of individuals who never were seen making a car move by depressing an accelerator.

The philosophy that the Ends justify the Means is alive and well.

Legal definitions vary

Posted by ericka at 2009-06-01 16:17

Yes, there is a dictionary definition of "driving" There is also a legal definition. And in Illinois, driving is defined as traditional driving OR being in a position to control a vehilce. Was just on a jury where we convicted a man of driving under the influence because he left his house (where he admitted to drinking all day) to sleep it off in the car. The police claimed that he told them he admitted to driving, which couldn't be proved, but the fact of the matter was he was in the car, with the keys and that met the standard. Lock your keys in the trunk, people. You don't have to like or even agree with a law for it to apply to you.
And word to the lawyers: think long and hard about putting your defendent on the stand. There was reasonable doubt until this guy started talking, changing his story on the stand five times in 20 minutes and giving several indications that he might have shown up drunk at his court date for drunk driving. I do not feel an iota of remorse for our verdict, as goofy as it may seem.

god bless you /sane one

Posted by michelle at 2011-09-05 15:11

i have never really known like you seeon here all the keys and crazy shit but i am thank you pointed out the definition because i had ran out of gas and didnt have any cash on me i called my boyfriend to come get me cause i was stranded... so cop is wrong and in fact i knew this because if i was "driving " why did he not ask me for my DL went he arrested me and still has not because if he had it would of told him i was suspended so he is going to look dumb as hell . RIGHT

dui

Posted by john at 2009-02-24 15:50

I was attested 2/21/09 at 2330 for a dui. I drove about 40 yrds from where my girlfriend and I were parked and pulled off the on ramp onto the shoulder of the on ramp. I told my girlfriend neither one of us should be driving. I got out of the vehicle and walked over to her window and after looking where we were decided to leave the car where it was and walk back to the function we were attending and call a cab or a friend. A CHP pulled up and asked what was going on and I told the truth. I told him We couldn't drive. I said that i tried but realized very quickly that I was in no shape to drive. I was not going to risk my girlfriends life or anybody else's thatwould be driving. If convicted I sure as hell know that I did the right thing by choosing to pulling over and stopping the vehicle instead of driving.

ethan aaron thomas 7 yrs old

Posted by patricia a thomas at 2011-09-14 23:37

I am the mother of three gorgeous children the oldest 20 youngest 14 and ethan our middle no longer with us would have been 17 last june 01.
The loss of my son and the understanding of the other two I can honestly say I we our family are the true victims. My husband past away this past March and seperated from megan and zachary has left another devestating blow It's as Earl Franca jr. has revisited my life and 10yrs later i am not as strong as i was then i will be 45 tomorrow and my life is over as i am still more now than then at a loss. I have and always will love my family although i sacraficed everything for justice and i would do it again for my remaing two children, as any mother would i would hope. "Drinking and Driving Does not Mix and it Never Will Hey Meg and Zach I love you Zachary where ever you are please contact me LOVE FOREVER MOM

Dui while out of gas

Posted by Sally keet at 2010-01-01 11:26

My boyfriend was driving and we ran out of gas. He went to go get gas and I hopped behind the wheel but the car was not moving and the engine was off with my hazards on. (He had the keys) Police charged me for a Dui just for sitting behind the wheel. How can I beat this case.I am new at this and need to know any type of advice.

me too...

Posted by Ariel Vibrans at 2010-07-13 21:30

I was arrested last night while sitting in my car on the side of the road. The passenger had the keys. I had a squeeky clean record before this, and am shocked that you can get a DUI for sitting in a car while you are drunk. I plan to contest it, and if I have any luck I will let ya'll know, but I live in the middle of nowhere, and perhaps getting money from me is the only way they pay for their donuts...

Regardless, don't drink and drive... I didn't.

Posted by Hannah at 2011-09-29 16:13

First off, if the passenger having the keys could get you out of a DUI, everyone would hand the passenger their keys when pulled over. The keys can be no where in the vacinity of the car, especially inside of the car.

Also, the donut joke- not funny. Police pull people over and arrest them for DUI because they use their discrection. So if they arrested you they obviously were right because you WERE drunk and WERE sitting in the drivers side of the car. Put yourself in their shoes. Would you believe you if you were sitting in the drivers seat, DRUNK, but saying "I promise i wasn't going to drive".

DUI Arrest

Posted by Lori at 2010-12-24 13:57

I was Arrested 2 nights ago for drunk driving. I was getting a ride home from a friend and a deer ran out in front my car. He went off road into snow bank got stuck. He walked to get help. He took keys with. I stayed with car a passer by stopped and I stayed in his car. Min later a cop showed up and well arrested me without seeing me driving and not even being in car and having no keys and me explaining I wasnt driving and to go down road and go look for friend walking. Which he accused me of lying. Took me to jail and well now been charged and don't understand how?

DUI Arrest

Posted by Lori C at 2010-12-24 14:00

owi? not even NEAR A CAR

Posted by Wendi at 2010-12-29 11:58

Christmas night, my friend was arrested at a kwik trip for owi..the kicker? her car was parked a block away..she was there (driving) about an hour before, parked her car a block away (because she knew she had too much) went to the bar for an hour and back to kwik trip...the clerk called the police, and she was arrested while on foot.? how the heck?

Stupidness!

Posted by Becky Jo at 2010-12-29 12:25

Why have cops if they can't even be a concerned citizen and just take u home! When they have given you a ride home twice before!

Ran out of gas

Posted by bob at 2011-03-15 20:07

I ran out of gas while coming home from a party. I had been drinking, but felt like I was very capable of driving home. I headed straight for a call box and started calling for a tow truck when the Calif. Highway Patrol drove up. I was totally honest with the police about everything, had the keys in my pocket and all. Do I have a case?

dui while not driving

Posted by brian at 2011-08-22 00:23

I was at a bar and my friend got kicked out. i was in the back seat and my sergent was in the passenger the dd went to go get our friend from inside my sergent took the keys out of the ignition and i jumped in front to charge my phone. the cops came and the charged me with a dui. they did not arrest me they just wrote me a ticket. do i have any way to fight this?

dui with out keys and car not moving

Posted by shawn at 2011-10-28 20:11

i am being charged with a dui when a guy i know wrecked the car i borrowed for us. he left to go get someone to help move the car off the side of the road and took the keys with him. i was sitting in the back seat with door open and cops came alittle later and i saw them while i was talking on the phone trying to find someone that knew a number for a tow truck. since then i have not seen this guy and his number is no longer active. don't know his last name but have a wittness that saw me not driving. How can they get me for a dui when there was no keys in the car or on me and wasn't seen driving. They are more worried about the dui's anymore than catchign the drug dealers and killers