DMV should not suspend if lack of DUI evidence of “DRIVING”

California Department of Motor Vehicles has gone on record with its Driver Safety Manual for administrative per se hearings after a DUI arrest. A relatively common issue attorneys deal with in these actions is whether or not DMV has evidence to find the accused person was “driving.”

San Diego DUI lawyers like to use this verbatim language when asking DMV to NOT suspend:

“12.071 Insufficient Evidence to Support the Driving Sub-Issue

The hearing officer should make negative findings on the reasonable cause issue if there is insufficient evidence to establish the officer’s belief driving took place.

A set aside is in order when the evidence supports the respondent denied driving, there was no observed driving, AND there is no circumstantial evidence of driving. Some examples include:

• the vehicle was legally parked.
• the person claimed another person was driving.
• the circumstantial evidence is not consistent with driving.
• the person cannot recall a collision or driving and other evidence is questionable.
• a witness saw the driver leave the scene, but failed to give their address or indicia of reliability.
• An anonymous tip regarding erratic driving was provided to law enforcement. (See Florida v. J.L., 529 US 667 (US Supreme Ct) regarding an anonymous tip.)
• the peace officer’s observations do not constitute driving.

12.070 Driving Takes Place on Private Property

A peace officer can arrest drivers for DUI in parking lots, off road areas, etc., because they are considered having public access. However, a driver cannot be arrested for any traffic violation on private property, ranch, backyard, etc., without the driving first being observed on a public roadway.

12.075 Insufficient Evidence to Support Driving While Intoxicated

There may be insufficient evidence to support that the officer had reasonable cause to believe driving occurred while the person was under the influence.

If there are situations where there is evidence and/or testimony to support that alcohol was consumed after driving, but before contact with an officer, examine the evidence and/or testimony. Ask additional questions to establish when the alcohol consumption occurred.

This argument is usually associated with:

• hit and run collisions
• when the driver leaves the vehicle behind to avoid apprehension
• unobserved single vehicle collisions.”

Keep in mind that DMV often misquotes the law. For example, see “Caveat” in this Article, DMV fails to state what the California Supreme Court actually stated about “driving” and the requirement of proof of “volitional movement” in Mercer v. DMV:

“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.
…
Because Penal Code section 836, subdivision 1, provides that a warrantless misdemeanor arrest is permissible only if a public offense occurs in the arresting officer’s “presence,” and because the officer in this case did not see Mercer’s vehicle move, we conclude Mercer was not “lawfully arrested” for a violation of section 23152(a) and thus cannot be subjected to the license revocation provisions of sections 23157 and 13353 as presently written.”

California DMV simply needs to follow the law, not just their manual.