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)

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).)