Saturday, November 28, 2009

"Not Driving" Defenses if facing a California DUI

California Criminal Court "Driving" Defense Questions in DUI cases 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 may vary from DUI case to DUI 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.

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.