Return to CALJIC Part 14-17 – Contents
F 16.830 n1 DUI: Credibility Of Injured Witness (CC 3333.4).
(See FORECITE F 12.60 n11.)
F 16.830a
Misdemeanor Driving Under The Influence:
Definition Of Driving
(VC 23152(a) & VC 23152(c))
*Add to CJ 16.830:
Driving is the act of physically controlling a moving vehicle whether or not the engine is running. If there is no movement of the vehicle then the defendant was not driving, even if [he] [she] started the engine.
Points and Authorities
A driver is defined as set forth above by VC 305. In People v. Hernandez (90) 219 CA3d 1177, 1183-84 [269 CR 21], the court discussed the question of what constitutes driving in the specific context of whether or not the engine needs to be running. In Hernandez, the defendant’s engine had stalled and he was controlling the vehicle as it coasted. The Hernandez court concluded that he was controlling the vehicle and, hence, driving it within the meaning of VC 23153(a). (Hernandez at 1183-84.) On the other hand, even if the engine has been started there is no driving unless there is movement of the vehicle. (Mercer v. DMV (91) 53 C3d 753, 762 [280 CR 745] [disapproving dictum in Hernandez]; see also Music v. DMV (90) 221 CA3d 841, 847-51 [270 CR 692].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
RESEARCH NOTES
See Annotation, What constitutes driving, operating, or being in control of motor vehicle for purposes of driving while intoxicated statutes, 93 ALR3d 7 and Later Case Service.
