FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 89
Go to Volume 7 Table of Contents - Go to Chapter 89 Table of Contents

    89.2 Drunk Driving: Miscellaneous Issues

    89.2.1 Drunk Driving: Definition Of Driving
    89.2.2 Drunk Driving: Definition Of Actual Physical Control
    89.2.3 Driving, Operating Or Actual Physical Control: Intent Requirement
    89.2.4 Drunk Driving: Consideration Of All The Evidence And Lack Of Evidence
    89.2.5 Drunk Driving: Applicability To Operation Of Motor Vehicle On Private Property
    89.2.6 Drunk Driving: Prior Conviction Stipulation/Bifurcation

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 89

RATIONALE: Because driving is an essential element of driving while intoxicated, it may be necessary to give the jury a definition of that term, especially when the driving issue is the focus of a defense theory.

POINTS AND AUTHORITIES: Judicial interpretations of the term "drive" for purposes of driving under the influence charges focus on the driver’s exercise of control over the speed and direction of a vehicle in motion. (See Underwood v. State (AL 1931) 132 SO 606; Ferguson v. State (MS 1945) 23 So2d 687; State v. Graves (SC 1977) 237 SE2d 584, 588; County of Milwaukee v. Proegler (WI 1980) 291 NW2d 608, 613-14.) To fall within the proscription of most statutes, the defendant must have actually driven, although this fact may be proven by circumstantial evidence. (See State v. Pieschke (MN 1980) 295 NW2d 580, 584-85.)

    In People v. Hernandez (CA 1990) 219 CA3d 1177, 1183-84 [269 CR 21], the court discussed the question of what constitutes driving in the specific context of whether or not the engine needs to be running. In Hernandez, the defendant's engine had stalled and he was controlling the vehicle as it coasted. The Hernandez court concluded that he was controlling the vehicle and, hence, driving it. (Hernandez, 219 CA3d at 1183-84.) On the other hand, even if the engine has been started there is no driving unless there is movement of the vehicle. (Mercer v. DMV (CA 1991) 53 C3d 753, 763-69 [280 CR 745] [disapproving dictum in Hernandez]; see also Music v. DMV (CA 1990) 221 CA3d 841, 848-51 [270 CR 692].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].           

NOTE: Steering the car from the passenger seat constitutes driving. (See In re Queen T. (CA 1993) 14 CA4th 1143 [17 CR2d 922].)

RESEARCH NOTES:

Annotation, What Constitutes Driving, Operating, Or Being In Control Of Motor Vehicle For Purposes Of Driving While Intoxicated Statutes, 93 ALR3d 7.

See also generally, FORECITE National™ 305.4.10 [Drunk Driving].

    Driving is the act of physically controlling a moving vehicle whether or not the engine is running. If there is no movement of the vehicle then the defendant was not driving, even if [he] [she] started the engine.

[Source: FORECITE National™.]

    To "drive" a motor vehicle means to exercise physical control over the speed and direction of a motor vehicle while it is in motion.

[See generally State v. Graves (SC 1977) 237 SE2d 584, 588; County of Milwaukee v. Proegler (WI 1980) 291 NW2d 608, 613-14; cf. MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG 29.02 [Driving Under The Influence Of Alcohol- Elements] ¶ 2, sent. 2 (West, 4th ed. 2000/01).]

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 89

RATIONALE: When there is an issue as to the defendant's physical control of the vehicle, it may be necessary to give the jury a definition of that term.

POINTS AND AUTHORITIES: In jurisdictions where the prosecution must show the defendant's "actual physical control" of the vehicle it normally will not be necessary to prove that the vehicle was actually moving. (See Reiff, Drunk Driving and Related Vehicular Offenses (Lexis, 1999) § 2-3(c), p. 9.) However, the defendant must have placed himself/herself in a position to readily control the vehicle. (Ibid.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

Annotation, What Constitutes Driving, Operating, Or Being In Control Of Motor Vehicle For Purposes Of Driving While Intoxicated Statutes, 93 ALR3d 7, § 3[c].

See also generally, FORECITE National™ 305.4.10 [Drunk Driving].

    A person is in 'actual physical control' of a vehicle within the meaning of these instructions when the vehicle is operable and the person is in position to manipulate one or more of the controls of the vehicle that cause it to move or affect its movement in some manner or direction. It means such control as would enable the defendant to actually operate the vehicle in the usual and ordinary manner. 'Actual physical control' of a vehicle results, even though the vehicle merely stands motionless, so long as a person keeps the vehicle in restraint or is in a position to regulate its movements.*

[See SOUTH DAKOTA PATTERN JURY INSTRUCTIONS -CRIMINAL, SDCL 3-10-10 [Driving Under The Influence-Drive-Actual Physical Control-Definitions] (State Bar of South Dakota, 2000); see also State v. Kitchens (SD 1993) 498 NW2d 649, 652 [intent to drive is not element of actual physical control of vehicle].]

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 89

PRACTICE NOTE: A number of jurisdictions require an intent to move the vehicle as an element of driving under the influence. (See What Constitutes Driving, Operating, or Being in Control of Motor Vehicle for Purposes of Driving While Intoxicated Statutes, 93 ALR3d 7.) Other jurisdictions do not require such intent. (Ibid.)

RESEARCH NOTES:

See generally, FORECITE National™ 305.4.10 [Drunk Driving].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 89

RATIONALE: When the prosecution has failed to present essential evidence, that lack of evidence may be sufficient for the jury to acquit.

POINTS AND AUTHORITIES: See State v. Clark (OR 1979) 593 P2d 123; Seattle v. Gellein (WA 1989) 768 P2d 470, 471; State v. Brayman (WA 1988) 751 P2d 294; State v. Franco (WA 1982) 639 P2d 1320, 1322-24.

RESEARCH NOTES:

See generally, FORECITE National™ 305.4.10 [Drunk Driving].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 89

Annotation, Applicability To Operation Of Motor Vehicle On Private Property, Of Legislation Making Drunken Driving A Criminal Offense, 52 ALR5th 655.

See also generally, FORECITE National™ 305.4.10 [Drunk Driving].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 89

PRACTICE NOTE: When a prior conviction is charged in a drunk driving prosecution, stipulation or bifurcation may be available to avoid presenting evidence and instruction on the prior to the jury. (See e.g., State v. Saul (ND 1989) 434 NW2d 572, 575; see also State v. Superior Court (AZ 1989) 778 P2d 1288, 1290 [bifurcation of prior required at trial but not before grand jury]; People v. Bouzas (CA 1991) 53 C3d 467 [279 CR 847]; People v. Weathington (CA 1991) 231 CA3d 69, 86-90 [282 CR 170]; Dedic v. Commonwealth (KY 1996) 920 SW2d 878, 879 [accused entitled to bifurcation]; but see State v. Geschwind (AZ 1983) 666 P2d 460, 462 [accused not entitled to bifurcation when prior DUI is an element of the substantive charge].)

    Under this procedure the defendant may stipulate to the prior conviction element in order to keep the evidence of the prior conviction from the jury. (MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG 29.24, comment [Driving Under The Influence (Gross Misdemeanor)- Elements] (West, 4th ed. 2000/01); see also OHIO JURY INSTRUCTIONS, VOLUME 4 - CRIMINAL, 4 OJI 413.35, comment [Issue Of Prior Conviction] (Anderson, 2001); see also Cooper, KENTUCKY INSTRUCTIONS TO JURIES § 8.65D [Operating A Motor Vehicle While License Revoked Or Suspended For DUI; Penalty; Third Offense] (Anderson, 4th ed. 1999) [prior convictions in DUI prosecution for enhancement purposes are inadmissible at guilt trial; therefore, bifurcated trial is required if an enhancement penalty is sought on the basis of prior convictions].)

RESEARCH NOTES: