Driving under the influence

Driving under the influence or DUI also known as a deuce.

Elements

"[S]ection 23152 requires proof of volitional movement of a vehicle." (Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 769.) In Mercer, the Supreme Court compared California's DUI statute to other jurisdictions. California criminalizes "driving" as opposed to "operating". A person asleep and slumped over the driving wheel of an operable vehicle with the engine running is "operating," but not "driving" a car.

Prior convictions

Out-of-state priors

For sentencing purposes

An out-of-state prior is priorable if it had been committed in California, the out-of-state prior would have been considered a DUI. (Veh. Code, § 23626.) Note that many states punish merely "operating" a vehicle while California requires "driving," volitional movement. (Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 769.) For example, siting in the driver's seat with engine on but parked is operating a car, but not driving it.

For DMV purposes

For DMV purposes, for out-of-state priors to be priorable, they need only be substantially similar, and not exactly the same as a court would require. (Veh. Code, §§ 13363, subd. (b); 15023, subd. (c)). For example, a Colorado DUI law that punished driving impaired to the slightest degree was substantially similar to California's DUI law. (McDonald v. Department of Motor Vehicles (2000) 77 Cal.App.4th 677)

49 State Table

State	Statute	Priorable?	Caselaw	Notes
Alabama
Alaska
Arizona	ARS 28-1381	No	People v. Self (2012) 204 Cal.App.4th 1054
Arkansas
Colorado		No	People v. Crane (2006) 142 Cal.App.4th 425
Connecticut
Delaware
District of Columbia

DE Dover Wilmington Dec 7, 1787 961,939 2,489 6,446 1,949 5,047 540 1,399 1

Florida	FL	Tallahassee	Jacksonville	Mar 3, 1845	20,984,400	65,758	170,312	53,625	138,887	12,133	31,424	27
Georgia	GA	Atlanta	Jan 2, 1788	10,429,379	59,425	153,910	57,513	148,959	1,912	4,951	14
Hawaii	HI	Honolulu	Aug 21, 1959	1,427,538	10,932	28,313	6,423	16,635	4,509	11,678	2
Idaho	ID	Boise	Jul 3, 1890	1,716,943	83,569	216,443	82,643	214,045	926	2,398	2
Illinois	IL	Springfield	Chicago	Dec 3, 1818	12,802,023	57,914	149,995	55,519	143,793	2,395	6,202	18
Indiana	IN	Indianapolis	Dec 11, 1816	6,666,818	36,420	94,326	35,826	92,789	593	1,537	9
Iowa	IA	Des Moines	Dec 28, 1846	3,145,711	56,273	145,746	55,857	144,669	416	1,077	4
Kansas	KS	Topeka	Wichita	Jan 29, 1861	2,913,123	82,278	213,100	81,759	211,754	520	1,346	4
Kentucky[E]	KY	Frankfort	Louisville	Jun 1, 1792	4,454,189	40,408	104,656	39,486	102,269	921	2,387	6
Louisiana	LA	Baton Rouge	New Orleans	Apr 30, 1812	4,684,333	52,378	135,659	43,204	111,898	9,174	23,761	6
Maine	ME	Augusta	Portland	Mar 15, 1820	1,335,907	35,380	91,633	30,843	79,883	4,537	11,750	2
Maryland	MD	Annapolis	Baltimore	Apr 28, 1788	6,052,177	12,406	32,131	9,707	25,142	2,699	6,990	8
Massachusetts[E]	MA	Boston	Feb 6, 1788	6,859,819	10,554	27,336	7,800	20,202	2,754	7,134	9
Michigan	MI	Lansing	Detroit	Jan 26, 1837	9,962,311	96,714	250,487	56,539	146,435	40,175	104,052	14
Minnesota	MN	St. Paul	Minneapolis	May 11, 1858	5,576,606	86,936	225,163	79,627	206,232	7,309	18,930	8
Mississippi	MS	Jackson	Dec 10, 1817	2,984,100	48,432	125,438	46,923	121,531	1,508	3,907	4
Missouri	MO	Jefferson City	Kansas City	Aug 10, 1821	6,113,532	69,707	180,540	68,742	178,040	965	2,501	8
Montana	MT	Helena	Billings	Nov 8, 1889	1,050,493	147,040	380,831	145,546	376,962	1,494	3,869	1
Nebraska	NE	Lincoln	Omaha	Mar 1, 1867	1,920,076	77,348	200,330	76,824	198,974	524	1,356	3
Nevada	NV	Carson City	Las Vegas	Oct 31, 1864	2,998,039	110,572	286,380	109,781	284,332	791	2,048	4
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming

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Driving under the influence on federal land

Under the Assimilative Crimes Act, 18 U.S.C. § 13, state law is incorporated into federal law on federal land where there is not a federal law on point. (United States v. Carlson (1990) 900 F.2d 1346.)

An important point to remember that for a federal DUI, like all out-of-state DUIs, if the client wishes to have California driving privileges restored, the client will need to complete the DUI classes as required by VC13352. It doesn't matter that the federal court didn't require it; the federal DUI is treated as if it were a California DUI, with all the conditions that attach. (Moomjian v. Zolin (1993) 12 Cal.App.4th 1606, 1613 [holding that a driver should have complied with California probation conditions for Georgia DUIs in order to have license re-instated].)

National Park Service land

DUIs on a National Park Service land are slightly different. There is an explicit federal offense under 36 CFR § 4.23 for DUI on National Park Service land. Like state DUI, there is a DUI count, 36 CFR § 4.23(a)(1), and a 0.08 per se count, 36 CFR § 4.23(a)(2). However, there are several important distinctions. First, the CFR criminalizes "operating or being in actual physical control of a motor vehicle," which covers a broader range of conduct than the Californian definition for driving, which is "volitional movement". (Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 769.) For example, siting in the driver's seat with engine on but parked is operating a car, but not driving it. Second, the CFR requires impairment that renders one "incapable of safe operation" while California only requires impairment "to an appreciable degree."

The CFRs have an implied consent law. (36 CFR § 4.23(c).)