Preparing your case to fight your traffic ticket, part 4

What's the definition of the word DRIVE?

California Vehicle Code section 305 states – A “driver” is a person who drives or is in actual physical control of a vehicle.

A driver is a person who drives.  Wow that's helpful.  Not.

And, even while the car was stopped at a red light, I was in actual physical control of the vehicle.  This doesn't look good for me so far.

I then found a jury instruction that is relevant to the word “drive”.

This instruction includes statutes and cases, what we lawyers call authority.  Yay!  One is the Vehicle Code section above.  The other is a case.  Mercer v DMV (1991).  I googled it.  Now admittedly I'm an attorney and know how to read cases, pull out the relevant information, and argue it.  Even if you're not an attorney, bring a copy of the case with you to your trial.  Yellow-highlight the parts that you think are important and are in your favor.  It can't hurt, right?

This case is from the California Supreme Court, not a lower Court of Appeal, so it's the final word in California on whatever it decided.

“We now turn to the essential question posed in this case, namely, whether an officer may make a 'lawful arrest' for 'drunk driving' in violation of section 23152(a), if the arrestee's vehicle is lawfully parked and the officer has not observed the vehicle move.”

I wasn't arrested for drunk driving.  Was I “parked”?

California Vehicle Code section 463 - “Park  or parking” shall mean the standing of a vehicle, whether occupied or not, otherwise than temporarily for the purpose of and while actually engaged in loading or unloading merchandise or passengers.

I was stopped at a red light.  Therefore, my vehicle was standing.  It was occupied.  It was “otherwise than temporarily for …”  Therefore, I could also argue I was “parked”.  Let's read more of the case to see if  “driving” also includes “parked”.

“Any doubt about our understanding of the word 'drive' is dispelled by decades of case law holding that the word 'drive,' when used in a drunk driving statute, requires evidence of a defendant's volitional movement of a vehicle.”

Okay this case is limiting its definition to “when used in a drunk driving statute” but I can still try to argue that it applies to me too.

The court analyzes the laws of 43 states, then states:

“But as we noted above..., the presence of the disjunctive 'or' in the quoted definition discloses legislative intent that a distinction be drawn between the verb 'drive' and the concept of 'actual physical control,' and thus it is improper to conclude, as did the Colorado and New Mexico courts, that the two terms are synonymous.”

Yes, every single word in every statute is important!

“Based on (i) the 'plain meaning' of the statutory term 'drive,' (ii) the use of that and related terms by our Legislature in related statutes, and (iii) the interpretation of the word 'drive' and related terms in numerous decisions by our sister states, we conclude section 23152 requires proof of volitional movement of a vehicle.”

Yes!  The car must be moving to satisfy the definition of “drive”.  I was NOT moving.  I was stopped at a red light.  Yay me!

Caveat – I'm discussing the law as it existed (1) at the time I received my ticket, or (2) at the time I wrote this blog post.  The law frequently changes.  The Vehicle Code section might be different now.  A new case might have been decided with the opposite result and which overruled the case I discuss here.  Always look at the law and the cases which are in effect on the date YOU received YOUR traffic ticket.

PS – if you found this statutory analysis interesting or fun or exciting, (1) come back next week because we'll be looking at another case, and (2) consider going to law school =)