Jim Porter: DUI without driving a car
May 5, 2011
TRUCKEE/TAHOE, Calif. and#8212;-Legal riddle of the day: Can you be convicted of driving under the influence when you are not actually driving the car? Youand#8217;ll have to read on for the answer, but suffice it to say for you unwilling to do so, that while itand#8217;s not easy, it can be done. Just ask juvenile defendant F.H. (name changed to protect the innocent, as Joe Friday would say.)
Just the facts, maand#8217;am
At three in the morning, Santa Rosa police officer Bryan Ellis was flagged down by Ricardo Mendoza, who appeared and#8220;discombobulated.and#8221; Mendoza was in shock, having just been in a car accident, to which he took officer Ellis. Down the road they found defendant F.H. in a car which had just rolled over several times, landing upside down in a ditch. Mendoza told the ambulance crew that his girlfriend F.H. and he were arguing and F.H. suddenly grabbed the wheel and yanked it, causing the crash.
F.H. admitted to the officers that she drank five shots of alcohol and some beer and smoked and#8220;a little bit of marijuana earlier.and#8221; A blood test showed a blood alcohol level of .10 percent.
F.H. kept saying, and#8220;I did it. It was my fault.and#8221; (As your lawyer I suggest you refrain from yelling and#8220;I did itand#8221; when you are at the scene of an accident, even though I know I will pay for that free advice).
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The juvenile court found that F.H. had committed two misdemeanors: driving while under the influence causing bodily injury and driving with a blood alcohol level of .08 percent or more. She was placed on home probation.
Wait a minute. How can that be? F.H. was not even driving the car. Indeed that was the legal argument before the court, and interestingly (if any of this can be interesting), this was the first time a California court considered such facts.
Driving a vehicle
California law defines and#8220;driverand#8221; as and#8220;a person who drives or is in actual physical control of a vehicle.and#8221;
The Court of Appeal looked at two similar California cases, both involving two intoxicated persons. In one case the driver operated the accelerator and brakes while the passenger steered, because the driver did not know where to go. And in the other the passenger manipulated the steering wheel while the driver operated the stick shift and the foot pedals. In both cases the Court concluded that both the passenger and the driver were driving the vehicle. They were both in and#8220;actual physical controland#8221; of the vehicle.
F.H. argued those cases were different because the two drivers were cooperating, while she and Mendoza were not acting as a team. What they had in common was all six were intoxicated.
Out of state
The Court looked at four out of state cases, which is what courts do when there are no cases on point in California. In all four cases the passenger was either drunk and/or arguing with the driver and yanked on the steering wheel resulting in serious injuries. In all four decisions the courts found the passenger pulling on the steering wheel had actual physical control of the vehicle and was thus and#8220;drivingand#8221; the vehicle as was the person operating the gas and brake pedals.
F.H.and#8217;s convictions of a DUI and driving with too much alcohol in her system were upheld. Not a terribly difficult decision to make.
I remember back in the and#8216;70s, my brother Paul and I were driving back from a party in Glenshire and#8212; where they were serving alcohol and#8212; in the middle of a snowstorm. He jerked on the steering wheel to be funny and we slid into a snow bank. It seemed hilarious at the time. It was definitely stupid. We were lucky. I didnand#8217;t realize at the time he was actually and#8220;drivingand#8221; my VW.
Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at firstname.lastname@example.org or at the firmand#8217;s website http://www.portersimon.com.