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

Posted Saturday, March 01, 2008
Filed in Court Rulings | Permalink | Comments (6)

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.