What Constitutes a Vehicle for Purposes of DUI Law. 

      Both of California’s drunk driving offense statutes California Vehicle Code §§23152 and 23153 require that the defendant “drive” a motor vehicle. In circumstances where the defendant was seen operating a moving automobile on a highway there is rarely any controversy, but without personal observation, this has lead to subjective definitions of “driving.” In Mercer v. DMV (1991) 53 Cal.3d 753, the California Supreme Court contrasted the term “drive,” commonly understood to require volitional movement of the vehicle, with the term “driver,” defined in California Vehicle Code §305 as one who is either driving or in actual physical control. Id. at 763.  The Mercer Court pointed out that the phrase “actual physical control” does not appear anywhere in the drunk driving offense statutes. Further, the court noted that since “driver” is defined as one who drives or is in actual physical control, the two terms must have different meanings. Id. at 763-764. Pursuant to Keeler v. Superior Court of Amador County (1970) 2 Cal.3d 619, 631, these statutes are to be interpreted strictly as opposed to broadly. With strict construction, the Mercer Court held that mere actual physical control is not enough to constitute driving, and thus driving under the influence statutes require volitional movement of the vehicle.  Id. at 768-770. The lower court Mercer ruling found the opposite, that driving could be found without movement. Mercer v. DMV (1990) 271 Cal.Rptr. 885, 889, citing to Henslee v. DMV (1985) 168 Cal.App3d 445, 450-451, finding “driving” without vehicle movement, Another Court of Appeal found that driving required movement, Music v. DMV (1990) 221 Cal.App.3d 841, 850.  Both Henslee and Music were decided on similar facts, [In Henslee the defendant was behind the wheel with the engine running and the transmission in neutral; In Music, the defendant was asleep, engine running and the transmission in neutral, and when awakened by the arresting officer and asked him to shut the engine down, he instead reached for the gear shift but never engaged it.] The Mercer Court also pointed out some of the implications on the proof at trial of volitional movement in the presence of the arresting officer. 

      There must mere proof that the defendant was “driving” including volitional movement, but that proof can be by circumstantial evidence at trial. (See also In re Queen T. (1993) 14 Cal.App.4th 1143, 1145-1146, [steering a car while someone else works the gas and brakes, is driving]; Adler v. DMV (1991) 228 Cal.App.3d 252, 258-259, [Opening a car door on driver’s side is “driving” and “operation” “in any manner” under California Vehicle Code sections 305 and 16000 (insurance financial responsibility)]; Cabral v. Los Angeles County Metropolitan Transportation Authority (1998) 66 Cal.App.4th 907, 913-914, [Opening the door of a parked car was “use” or “operation” for purposes of California Civil Code section 3333.4, restricting damages allowed to uninsured drivers.]  Thus, opening a car door and other similar “operating” activities are not “driving” for purposes of the drunk driving laws. But what about moving car a slight distance after an accident?   A 1937 Superior Court Appellate Department opinion held that pushing a disabled car is not “driving” on the highway” because it could not have been driven or moved under its own power for any considerable distance. People v. Kelley (1937) 27 Cal.App.2d Supp. 771, 773. 

      California drunk driving laws make no distinction whether the illegal act is done on private property as well as public highways: California Vehicle Code section 23100; People v. Malvitz (1992) 11 Cal.App.4th Supp. 9, 13-14.  However, the definition of highway is not insignificant in drunk driving cases because the definition of vehicle depends upon the definition of “highway” is. Defining a vehicle requires more analysis. California Vehicle Code §670 defines a vehicle as: “A device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.” Thus, the general rule is that any device with a motor that has been designed to be driven on highways is a vehicle. However, bicycles without motors are not considered vehicles. Tomson v. Kischassey (1956) 144 Cal.App.2d 363; 355-267; accord Chong v. C.S.A.A. (1996) 48 Cal.App.4^th 285, 288.  Bicycles with motors are usually considered vehicles for purposes of California Vehicle Code §670. Thus, a bicycle with a gasoline engine is a vehicle according to People v. Jordan (1977) 75 Cal.App.3d Supp. 1, [moped with engine turned off and operator is pedaling at the time of the offense is a vehicle because it was not designed to be moved exclusively by human power.]  Moreover, in California, driving a bicycle drunk is a separate crime. California Vehicle Code section 21200.5.  A “bicycle” is defined as “a device upon which any person may ride, propelled exclusively by human power through a belt, chain or gears, and having either two or three wheels in tandem or tricycle arrangement.” California Vehicle Code section 21200.  Some bicycles with small electric motors are not considered vehicles for purposes of the driver’s license laws, but they are still vehicles for purposes of California Vehicle Code section 670. A “motorized scooter” is a vehicle. California Vehicle Code sections 407.5 and 21220 et seq); and is subject to all the traffic and drunk driving laws.  California Vehicle Code  section 21221.  In addition, California Vehicle Code section §21221.5 outlaws driving a motorized scooter while under the influence of alcohol.  

      A person operating a wheelchair is not driving a vehicle.  California Vehicle Code sections 415, 467, 14900 amended and 4011. A “low speed vehicle” is a vehicle, and not a “golf cart” unless operated under California Vehicle Code. Sections 21115 and 21115.5.  It is subject to the traffic laws California Vehicle Code  section 21251.  [Other California authorities on the subject: 73 Ops.Atty.Gen. 273 (1990, #90-302, [A golf cart is a vehicle]; 42 Ops.Atty.Gen. 129 (1963, #63-70), [A tractor is a vehicle]; 12 Ops.Atty.Gen. 28, 32 (1948, #48-139), [Airplane is not a vehicle.]  It follows that drunk driving laws apply to driving these vehicles while under the influence regardless of whether or not they are vehicles under California Vehicle Code §670. See California Public Utilities Code §7818, {Streetcar]; California Public Utilities Code §7679, [Train];  California Public Utilities Code sections 21407.1 et seq. [Airplane]; California Harbor and Navigations Code sections 655 et seq.[Boat]. 

      A person riding a horse or other animal on a highway may be driving a vehicle for traffic offenses purposes, including the drunk driving laws. California Vehicle Code section 21050; But a horse isn’t a vehicle for insurance purposes. Hartford Accident & Indemnity Co. v. Jackson (1983) 150 Cal.App.3d 111, 115.  There is no separately defined offense of drunk animal riding.