People v. Jordan

• Decision Date: 17 October 1977
• Docket Number: No. 115226,Cr. A,115226
• Citation: 75 Cal.App.3d Supp. 1,142 Cal.Rptr. 401
• Parties: 75 Cal.App.3d Supp. 1 The PEOPLE of the State of California, Plaintiff and Appellant, v. Florence Elaine JORDAN, Defendant and Respondent. Appellate Department, Superior Court, Santa Barbara County, California
• Court: California Superior Court

Page 401

142 Cal.Rptr. 401

75 Cal.App.3d Supp. 1

The PEOPLE of the State of California, Plaintiff and Appellant, v. Florence Elaine JORDAN, Defendant and Respondent.

Cr. A. No. 115226.

Appellate Department, Superior Court, Santa Barbara County, California.

Oct. 17, 1977.

[75 Cal.App.3d Supp. 4] Stanley M. Roden, Dist. Atty. and Craig A. Smith, Deputy Dist. Atty., for plaintiff and appellant.

Kingston & Martinez and Abbe Allen Kingston, Santa Barbara, for defendant and respondent.

OPINION

STEVENS, Judge.

Respondent was charged with misdemeanor drunk driving (Veh.Code, § 23102, subd. (a)) and with driving a motor vehicle without having a valid license (Veh.Code, § 12500, subd. (a)). The evidence against her was ordered suppressed on the theory that she was not "driving" a "motor vehicle." The People appeal.

FACTS

A passing citizen saw respondent sitting on the curb next to a "moped" which was lying on the side of the road. Believing she had been involved in an accident, he stopped to render assistance. After noting that her speech was slurred and incoherent, and the odor of alcohol, he concluded that she was intoxicated. Based upon what respondent told him, he concluded that she had been pedaling the moped and fell when she hit the curb.

The citizen asked some kids across the street to call the police and in a few minutes both a police officer and a highway patrol officer arrived. Respondent failed to pass a sobriety test. A chemical test revealed her blood alcohol content was between .22 and .23 All witnesses described a "moped" as a "little motor scooter" which could be propelled either by pedaling or by the motor. The citizen indicated that, "You pedal and kick the engine in to get it started." Although it was clear that respondent was pedaling the moped, there was no evidence that the motor was running prior to the accident.

ISSUES

1. Are all persons driving a vehicle equipped with a motor subject to arrest and prosecution for drunk driving?

2. Is a person "driving" a vehicle if the vehicle is in motion, but the engine has not been turned on?

3. Is a person driving a motorized vehicle subject to the implied consent law?

4. Was respondent's arrest lawful?

DISCUSSION

1. Persons driving a vehicle equipped with a motor are subject to arrest and prosecution for drunk driving.

It is unlawful for any person who is under the influence of intoxicating liquor, or under the combined influence of intoxicating liquor and a drug, to drive a vehicle "upon a highway" or "upon other than a highway" (Veh.Code, § 23102, subds. (a) and (b)).

The definitions set forth in the Vehicle Code govern the construction of that code unless the provision or context otherwise requires (Veh.Code, § 100). A "vehicle" is defined as "a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks" (Veh.Code, § 670). A "motor vehicle" is defined as "a vehicle which is self-propelled." (Veh.Code, § 415.)

In California, the terms "motorcycle," "motor-driven cycle," and "motorized bicycle" are defined by statute. A "motor-driven cycle" is "any motorcycle, including every motor scooter, with a motor which produces less than 15 gross brake horsepower, and every bicycle with motor attached. A motor-driven cycle does not include a motorized bicycle, as defined in Section 406." (Veh.Code, § 405.) A "motorized bicycle" is "any two-wheeled or three-wheeled device having fully operative pedals for propulsion by human power, or having no pedals is powered solely by electrical energy, and an automatic transmission and a motor which produces less than 2 gross brake horsepower and is capable of propelling the device at a maximum speed of not more than 30 miles per hour on level ground." (Veh.Code, § 406.) On the other hand, a "bicycle" is defined as "a device upon which any person may ride, propelled exclusively by human power through a belt, chain or gears, and having either two or three wheels in tandem or tricycle arrangement." (Veh.Code, § 21200.)

The term "motor vehicle" includes a motor truck (Veh.Code, § 410), a truck tractor (Veh.Code, § 655), a snow mobile (Veh.Code, § 557), a motorcycle (Veh.Code. § 400; Harrison v. Cal. State Auto. Assn. Inter Ins. Bureau (1976) 56 Cal.App.3d 657, 663, 128 Cal.Rptr. 514), a mobile crane or mobile truck crane (Colby v. Liberty Mutual Ins. Co. (1966) 220 Cal.App.2d 38, 44-45, 33 Cal.Rptr. 538; Donahue Cons. Co. v. Trans Indemnity Co. (1970) 7 Cal.App.3d 291, 300, 86 Cal.Rptr. 632), a motorized forklift (Travelers Indem. Co. v. Colonial Ins. Co. (1966) 242 Cal.App.2d 227, 236-238, 51 Cal.Rptr. 724 ¹ and a bulldozer (Lambert v. Southern Counties Gas Co. (1959) 52 Cal.2d 347, 351, 340 P.2d 608.)

Although there is no California case discussing the status of motorized bicycles, New York courts have concluded that motorized bicycles are motor vehicles within their vehicle and traffic laws. (Lalomia v. Bankers & Shippers Ins. Co. (1970) 35 App.Div.2d 114, 312 N.Y.S.2d 1018, 1020; affd. (1972) 31 N.Y.2d 830, 339 N.Y.S.2d 680, 291 N.E.2d 724.) See, also, People v. Devlin (1970) 64 Misc.2d 327, 314 N.Y.S.2d 670 ("mini-bike"); Zapp v. Ross Pontiac Inc. (1972) 39 App.Div.2d 739, 332 N.Y.S.2d 121 ("go-cart").

It has been held that farm tractor is a vehicle within the meaning of the drunk driving laws. (State v. Powell (Mo.1957) 306 S.W.2d 531, 66 A.L.R.2d 1141; State v. Green (1959) 251 N.C. 141, 110 S.E.2d 805.) ² However, a New Jersey court recently held that the driver of a moped could not be convicted of operating a motor vehicle while under the influence of intoxicating liquor where the Legislature had recently amended the law so as to expressly exclude motorized bicycles from the statutory definition of "motor vehicle." (State v. Gilfesis (1977) 148 N.J.Super. 369, 372 A.2d 680.)

California statutes are different in two significant respects. First, the driver of any vehicle is subject to prosecution for misdemeanor drunk driving. (Veh.Code, § 23102, subds. (a) and (b).) Second, the statutory definition of a vehicle includes all devices by which a person or property may be propelled or moved upon a highway, except a device moved exclusively by human power or used exclusively upon stationary racks or tracks. (Veh.Code, § 670.)

The word, "exclusively" has a clear meaning and must be given effect. (People v. Pakchoian (1952) 114 Cal.App.2d Supp. 831, 832-833, 250 P.2d 767.) Since a moped is equipped with a motor, it is not a means of conveyance propelled exclusively by human power. Hence, it is a vehicle within the ambit of our drunk driving laws. (Veh.Code, §§ 406, 670, and 23102, subds. (a) and (b).)

2. A person is driving a motor vehicle when he or she is steering or controlling a vehicle which is in motion, even though the motor is off at that time.

Section 305 of the Vehicle Code defines a "driver" as "(one) who drives or is in physical control of a vehicle." The word "drive" has been defined to mean "to impel the motion and quicken" (Bosse v. Marye (1926) 80 Cal.App. 109, 118, 250 P. 693, 696); "to cause the vehicle to be in motion" (Poling v. State (1973) 156 Ind.App. 145, 295 N.E.2d 635, 637); and to mean "steering and controlling a vehicle while in motion." (McDuell v. State, (Del.1967) 231 A.2d 265, 267.) ³

To warrant conviction, only slight movement is necessary. (See, e. g., State v. Magdich (1928) 105 W.Va. 585, 143 S.E. 348 (8 to 12 feet); Tenino v. Hyde (1926) 138 Wash. 251, 244 P. 550 (12 to 15 feet).) One court held that where defendant started the motor and spun its wheels in an effort to extricate the vehicle from mud he was driving the vehicle. (State v. Parker (1959) 81 Idaho 51, 336 P.2d 318.)

Respondent's reliance upon People v. Kelley (1976) 27 Cal.App.2d Supp. 771, 70 P.2d 276 is misplaced. In Kelley, the only evidence was that defendant, while intoxicated, entered a car involved in a collision, started the engine, and with the help of others who were pushing the car, disengaged it and backed it four to five feet. The front wheel was demolished and the axle had to be dragged. Although the court held that Kelley was not "driving" the vehicle, it was careful to point out that it had not attempted to provide a definition of the word "drive" applicable to all situations. (Id. at p. 775, 70 P.2d 276.)

Kelley must be understood in light of the facts and issue before the court. (Porter v. Bakersfield & Kern Elec. Ry. Co. (1950) 36 Cal.2d 582, 590, 225 P.2d 223.) In this case, the moped was operable and was propelled considerably more than four to five feet before it hit the curb. We conclude that respondent did steer and exercise physical control over a vehicle which was in motion.

Respondent next contends that she was not subject to prosecution because she was simply pedaling the moped and there was no evidence that the engine was running prior to the accident. However, it has been consistently held that a person steering or controlling a vehicle may be prosecuted for drunk driving when the vehicle is in motion but the engine is off. Prosecutions have been upheld where an intoxicated person was steering or controlling a vehicle being pushed or towed by others. (See e. g. Walker v. State (1966) 241 Ark. 396, 408 S.W.2d 474; Harris v. State (1958) 97 Ga.App. 495, 103 S.E.2d 443; Duckett v. State (1963) 108 Ga.App. 317, 132 S.E.2d 811; Hester v. State (1954) 196 Tenn. 680, 270 S.W.2d 321, 47 A.L.R.2d 568; Rogers v. State (1944) 147 Tex.Cr. 602, 183 S.W.2d 572; Chamberlain v. State (1956) 163 Tex.Cr. 529, 294 S.W.2d 719; State v. Tacey (1930) 102 Vt. 439, 150 A. 68, 68 A.L.R. 1353.) A prosecution was also upheld where a defendant steered an inoperative vehicle as it coasted down a steeply inclined driveway. (Farley v. State (1965) 251 Miss. 497, 170 So.2d 625 (1965).)

In Hester v. State, supra, the Tennessee Supreme Court stated:

" . . . The...