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.
(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.
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.
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.
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.
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.
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).)
[¶] 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].
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.
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.