Wednesday, May 9, 2012
What exactly is "Driving" as defined by the California Supreme Court and why does the DMV not correctly reference the Mercer DUI case, lawyers ask??
DUI Lawyers hotly contest the issue of "Driving" when there are questions regarding the proof of volitional movement within 3 hours of a California chemical test.
This new Article encompasses the California Department of Motor Vehicles' Driver Safety Manual and California Supreme Court case law when there is insufficient evidence to establish the issue of driving.
DUI Defense Attorneys handling San Diego administrative per se hearings at DMV may be quick to request a Hearing Officer to follow their own Manual.
One problem is that the manual has some incorrect language which misquotes and/or oversimplifies the California Supreme Court's requirement of driving / volitional movement of the vehicle.
For instance, this Manual reference to "Caveat" is not stated correctly:
"Caveat: Since the Mercer State Supreme Court case in 1991, and a change in the Vehicle Code, effective January 1, 1993, “actual physical control” is no longer a requirement to uphold an APS case. A lawful arrest can be made pursuant to §40300.5 VC when an individual behind the wheel is legally parked with the lights on and the engine running, and does not move the vehicle in the presence of an officer or there are no other witnesses that observed driving."
If you think asking a DMV hearing officer to follow the law rather than the manual is easy, talk to a DMV / DUI defense attorney who regularly appears at the DMV Office of Driver Safety, Department of Licensing in San Diego California.