San Diego DUI Legal Guide

What is "Driving"?

While some states use the word driving in their statutes, others use such terms as operating or being in physical control. The differences in definition and application can be significant. To confuse matters, court decisions may use terminology like "being in actual physical control" to define a statutory word like "driving" or "operating." To further confuse matters, what constitutes "driving" or "operating" or "being in control" varies from one jurisdiction to another — and, not uncommonly, within a given jurisdiction. And to make things completely confusing, what constitutes the element of driving for purposes of the criminal offense may be different from what constitutes that element for administrative license suspension purposes.

The following is an example of one appellate court's attempt to clarify the terminology for that state, at least in the criminal context:

The words "operating" and "driving" are not synonymous; they have well-recognized statutory distinctions. Of the two terms, the latter is generally accorded a more strict and limited meaning. The term "driving" is generally used to mean, in this connection, steering and controlling a vehicle while in motion; the term "operating," on the other hand, is generally given a broader meaning to include starting the engine or manipulating the mechanical or electrical devices of a standing vehicle...

The language of the statute, then, can be critical and should be clearly understood by San Diego DUI attorneys.

The Uniform Vehicle Code §11-902(a) (1968), which has been adopted in many states, uses the phrase to "drive or be in actual physical control." While most of the adopting states follow the language of the Code, some of them have not included the "physical control" aspect in their statutes, and many have combined references to drugs with those relating to alcohol or intoxicating liquor. Some states do not follow the precise Code language. For example, some jurisdictions refer to driving "while in an intoxicated condition." Other legislation relates to persons operating vehicles under the influence of "alcohol" or "alcoholic liquor,'' while still other states simply refer to ''intoxicants.''

What constitutes driving or operating in an individual case has been the subject of numerous and inconsistent judicial decisions. Arid despite attempts by appellate courts to encompass any type of conduct in a vehicle within the statute's definition, the argument that the client's conduct did not fall within the ambit of the statute should be made in any case not involving actual inmotion driving behind the wheel.

Some appellate courts have attempted to enumerate a list of factors to be considered in determining from their totality whether a defendant was driving/operating or in control of a vehicle for purposes of the drunk driving statute. A Nevada court, for example, set forth the following criteria:

1. The defendant's position in the vehicle;
2. Was the engine running or not;
3. Was the defendant conscious or unconscious;
4. Where the keys were located (ignition, defendant's pocket, on the floor, etc.);
5. Were the headlights on or off (if at night);
6. Was the defendant trying to move the vehicle;
7. Was the vehicle parked on private or public property; and
8. Do circumstances indicate that the defendant had to drive the vehicle to the location.

Rogers v. State, 773 P.2d 1226 (Nev. 1989). Similarly, in State v. Love, 897 P.2d 626 (Ariz. 1995), the Arizona Supreme Court adopted a "totality of the circumstances" test to determine whether there was actual physical control. In rejecting a rigid ignition on/off rule, the court used many of the same factors as the Nevada court to determine whether the vehicle was merely being used as a temporary shelter:

1. Was the driver awake;
2. Was the engine running or the ignition on;
3. Where were the keys;
4. Where was the driver located;
5. Were the headlights on;
6. What time of day or night was it;
7. Was the vehicle legally parked or was it on a road;
8. Was the heater or air conditioner on;
9. Were the windows up or down;
10. What was the defendant's version of events.

See also, Richfield City v. Walker, 790 P.2d 87 (Utah 1990), where additional factors were considered such as (1) the position of the vehicle, (2) whether the defendant was the sole occupant, (3) whether the defendant had the apparent ability to start the vehicle. These factors suggest certain factual scenarios concerning the issue of driving/operating/control, which occur in drunk driving cases with some frequency. Thus, for example, counsel will likely be confronted at some time with some of the following situations:

1. The client was asleep or unconscious behind the wheel;
2. The client was awake but the ignition was turned off;
3. The engine was on but there was no actual "driving" — i.e., movement of the vehicle;
4. The vehicle had run out of gas or was otherwise inoperable;
5. The vehicle was coasting or being pushed or towed;
6. The client was using the vehicle as temporary shelter.