Mercer v. Department of Motor Vehicles

101 Citing cases

  1. Troppman v. Borucki

    126 Cal.App.4th 755 (Cal. Ct. App. 2005)   Cited 1 times
    Explaining that the California legislature amended the California Vehicle Code in response to Mercer to create an express exception to the presence requirement where evidence may be destroyed by the passage of time

    For more than 12 years, California appellate courts have been split as to whether the license of a suspected drunk driver may be suspended or revoked for refusal to submit to a chemical test, pursuant to Vehicle Code section 13353, in the absence of a finding that the person was actually driving a vehicle at the time of the alleged offense. (See Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 769, fn. 24 [ 280 Cal.Rptr. 745, 809 P.2d 404] [noting this issue has "divided the Courts of Appeal"] ( Mercer); see also 2 Witkin Epstein, Cal. Criminal Law (3d ed. 2000) Crimes, § 228, p. 774 [discussing the split of authorities].) Although the First Appellate District held in Rice v. Pierce (1988) 203 Cal.App.3d 1460 [ 250 Cal.Rptr. 832] ( Rice) that proof of actual driving is not required to support a license suspension or revocation in chemical refusal cases, the superior court in this case relied on contrary authority from the Fifth Appellate District and granted respondent Terry Troppman's petition for writ of mandate.

  2. People v. Nelson

    200 Cal.App.4th 1083 (Cal. Ct. App. 2011)   Cited 17 times   1 Legal Analyses

    (a), (e).) Defendant was observed using his phone in his car as he paused at a red traffic light while driving in Richmond, California. He argues he was not “driving” because his car was stopped during his phone use, relying on our Supreme Court's determination in Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 280 Cal.Rptr. 745, 809 P.2d 404( Mercer ) that the term “drive” as used in section 23512 (prohibiting driving under the influence of alcohol or drugs) requires proof of “volitional movement.” All future references are to the Vehicle Code unless otherwise stated.

  3. Troppman v. Valverde

    40 Cal.4th 1121 (Cal. 2007)   Cited 39 times
    In Troppman v. Valverde (2007) 40 Cal.4th 1121, the California Supreme Court recognized the "legislative purpose[s] underlying the implied consent Law [are]... '(1) to obtain the best evidence of blood alcohol content while ensuring cooperation of the person arrested, and (2) to inhibit driving under the influence.'"

    Sixteen years ago, in addressing a related question, we highlighted the issue presented here and invited the Legislature to "consider resolving [this] problem . . . that has divided the Courts of Appeal. . . ." ( Mercer v. Department of MotorVehicles (1991) 53 Cal.3d 753, 769, fn. 24 [ 280 Cal.Rptr. 745, 809 P.2d 404] ( Mercer), citing Medina,Jackson, Rice; see also, post, fn. 11.) The Legislature, however, has not addressed this issue in the interim.

  4. Villalobos v. Zolin

    35 Cal.App.4th 556 (Cal. Ct. App. 1995)   Cited 3 times

    The superior court rendered a judgment granting a petition for writ of mandate directing the Department of Motor Vehicles (hereafter, DMV) to set aside an order revoking Manuel E. Villalobos's driving privileges following Villalobos's arrest for driving under the influence of alcohol. It reasoned that Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753 [ 280 Cal.Rptr. 745, 809 P.2d 404], compelled issuance of the writ because the undisputed facts showed that the arresting officer did not see volitional movement of Villalobos's vehicle. On appeal, DMV contends that Mercer does not apply because Villalobos was lawfully arrested for drunk driving notwithstanding that the officer did not see volitional movement.

  5. People v. Lively

    10 Cal.App.4th 1364 (Cal. Ct. App. 1992)   Cited 31 times
    Reviewing cases and concluding that "[i]n an arrest for public intoxication, the totality of the circumstances must be considered in determining whether the intoxicated person can exercise care for his or her own safety or the safety of others"

    Defendant was sentenced to 16 months in state prison. (1a) On appeal, defendant contends his breath test results should have been suppressed because warrantless misdemeanor arrests are permissible only if the offense is committed in the officer's presence (Pen. Code, § 836, subd. 1) and the officer who arrested defendant for driving under the influence of alcohol did not see him drive. ( Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753 [ 280 Cal.Rptr. 745, 809 P.2d 404].) The trial court found that defendant could have been arrested for public intoxication (Pen. Code, § 647, subd. (f)), which occurred in the officer's presence, and on that basis could have been required to submit to a breath test.

  6. Gikas v. Zolin

    6 Cal.4th 841 (Cal. 1993)   Cited 262 times
    Holding the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding

    For the incriminating evidence to be admissible in the criminal proceeding, or for the DMV to suspend the driver's license, the underlying arrest must have been lawful. (§ 13557, subd. (b)(2)(A); Agresti v. Departmentof MotorVehicles, supra, 5 Cal.App.4th at p. 607; see also Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 760 [ 280 Cal.Rptr. 745, 809 P.2d 404]; Zapata v. Department of MotorVehicles (1991) 2 Cal.App.4th 108, 111 [ 2 Cal.Rptr.2d 855]; and Music v. Department of Motor Vehicles (1990) 221 Cal.App.3d 841, 847 [ 270 Cal.Rptr. 692] [interpreting similar statutory language in § 13353, involving the "implied consent" law].) (3a) In the criminal proceeding of this case, the court concluded that the arrest was unlawful.

  7. Ritschel v. City of Fountain Valley

    137 Cal.App.4th 107 (Cal. Ct. App. 2006)   Cited 68 times
    Affirming nonsuit where trial court had already heard the bulk of evidence relating to plaintiff's claim and the court specifically found that the additional evidence plaintiff intended to offer would be insufficient to support the claim

    Shortly after the United States Supreme Court decided Schmerber, the California Legislature enacted this state's original implied consent law, former Vehicle Code section 13353. ( Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 758 [ 280 Cal.Rptr. 745, 809 P.2d 404].) In its current form, it declares that a person arrested for driving while under the influence of alcohol is obligated to submit "to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood. . . ." (Veh. Code, § 23612, subd. (a)(1)(A).)

  8. Draeger v. Reed

    69 Cal.App.4th 1511 (Cal. Ct. App. 1999)   Cited 50 times
    In Reed, the preliminary hearing transcript contained the testimony of the actual victims, thus falling under Evidence Code section 1291, subdivision (a).

    [¶] Driving a vehicle and being in actual control of a vehicle are not synonymous. Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753 [280 Ca,Rptr. 745, 809 P.2d 404].

  9. Guapo-Villegas v. City of Soledad

    24-cv-00575-VKD (N.D. Cal. Sep. 4, 2024)   Cited 1 times

    Thus, claims of drunk driving under California law “require[] proof of volitional movement of a vehicle.” Mercer v. Dep't of Motor Vehicles, 53 Cal.3d 753, 768 (1991). Such proof may be circumstantial.

  10. Gentis v. Safeguard Business Systems, Inc.

    60 Cal.App.4th 1294 (Cal. Ct. App. 1998)   Cited 44 times
    Denying petition for rehearing where petition simply restated arguments previously raised and considered

    By using the word "or," the Legislature intentionally broadened the scope of the statute. ( Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 763-764 [ 280 Cal.Rptr. 745, 809 P.2d 404]; Burge v. City County of San Francisco (1953) 41 Cal.2d 608, 616 [ 262 P.2d 6].) The double use of the disjunctive recognizes a distinction between: offering goods; selling goods; distributing goods; offering services; selling services; and distributing services.