Criminal Arrest

San Diego California DUI Prosecutor Must Prove Beyond a Reasonable Doubt that the Vehicle Actually Moved & the Person Was Actually Driving

Preliminary California Criminal Court "Driving" Defense Questions include:

1) Did California police officer actually observe the person driving the vehicle?

2) Does the officer have first-hand knowledge of the person driving?

3) Was the vehicle lawfully parked when the officer arrived on the scene?

4) Is there a reliable witness who can actually identify the person as the driver?

5) Could there have been another person driving?

6) Can competent witnesses establish the vehicle moved within 3 hours of the chemical test?

7) Is corpus delicti for a DUI offense (actual driver + driving of vehicle, etc.) established?

8) Was the warrantless DUI arrest lawful?


California Case Law often used by Superior Court Judges varies from case to case

A “slight movement” of the vehicle in the arresting officer’s presence must be shown, to constitute direct evidence that the vehicle was being driven. People v Wilson (1985) 176 CA3d Supp 1, 8, 222 CR 540.

Moving the vehicle even a few inches constitutes "driving" the vehicle. Music v Department of Motor Vehicles (1990) 221 CA3d 841, 850, 270 CR 692.

California Vehicle Code section 23152 (DUI)'s requirement "to drive a vehicle" means there must be evidence of "volitional movement" of a vehicle. A misdemeanor arrest without a warrant is permissible only if a public offense occurs in the arresting officer's presence. Because the officer who arrested the driver did not see the driver's vehicle move, the driver was not lawfully arrested for a violation of Vehicle Code section 23152(a).
Mercer v Department of Motor Vehicles (1991) 53 C3d 753, 762, 280 CR 745

If the DUI arresting officer did not see the person drive the vehicle, proof the person was driving may, in limited criminal cases, be established by circumstantial evidence.

• Elimination of other possible drivers. If other possible drivers have been eliminated from consideration, the defendant’s proximity to the vehicle is evidence from which a reasonable inference may be drawn that the defendant was the driver.

In one case, a defendant who was found standing alone next to the vehicle after the accident and whose injuries were consistent with having sat in the driver’s seat was properly found to be the driver. e.g. People v Gapelu (1989) 216 CA3d 1006, 1009, 265 CR 94.

But e.g. People v Moreno (1987) 188 CA3d 1179, 1186, 1190, 233 CR 863 (corpus delicti was not established when there was no evidence that defendant was driver and there were other people at scene who may have driven); People v Nelson (1983) 140 CA3d Supp 1, 3, 189 CR 845 (corpus delicti was not established because it was possible other individuals may have been driving).

Corpus delicti for a DUI offense was established in a case in which the officers found the vehicle parked on the side of the highway with a flat tire, the defendant 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. The prosecution 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 prosecution 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, it was entitled to use the defendant’s statement to establish that she was the driver. It was not required to eliminate all other inferences to establish the elements of the crime of DUI. People v McNorton (2001) 91 CA4th Supp 1, 5–6, 110 CR2d 930. See also People v Martinez (2007) 156 CA4th 851, 855–856, 67 CR3d 670 (corpus delicti 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. The corpus delicti for a DUI offense was established when the officers found the vehicle parked with its front tire missing and raised on a handjack, and the defendant had the keys to the vehicle and lug nuts in his pocket. See People v Scott (1999) 76 CA4th 411, 417–418, 90 CR2d 435. See also People v Komatsu (1989) 212 CA3d Supp 1, 5, 261 CR 681 (corpus delicti was established when officers discovered that vehicle was blocking roadway, parking lights of vehicle were on, defendant was only person in vicinity of vehicle and was intoxicated, and defendant was sleeping in front passenger’s seat holding car keys).

But again see Music v Department of Motor Vehiclesz' (1990) 221 CA3d 841, 850, 270 CR 692 (warrantless arrest of defendant was illegal because defendant did not move vehicle in officer’s presence; arrest occurred when officer observed defendant sitting in driver’s seat of his vehicle, which was parked in parking stall with engine running).

[Please note: California DMV administrative per se laws vary, may be beyond the scope of the above cases, and are subject to different procedures, rules and legal standards. The holdings in criminal cases involving review of these criminal requirements should not apply to a DMV proceeding unless it is based on a DMV decision. While DMV is bound to follow the above DMV decisions, DMV cannot rely on these criminal cases to support an administrative finding of "driving."]