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”.
