California Criminal Jury Instructions (CALCRIM) (2017)

2241. Driver and Driving Defined

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2241.Driver and Driving Defined (Veh. Code, § 305)
[A driver is a person who drives or is in actual physical control of a
vehicle.]
[A person drives a vehicle when he or she intentionally causes it to move
by exercising actual physical control over it. The person must cause the
vehicle to move, but the movement may be slight.]
New January 2006
BENCH NOTES
Instructional Duty
No case has held that the court has a sua sponte duty to define “driver” or
“driving.” This instruction is provided for the court to use, on request, at its
discretion.
AUTHORITY
• Driver Defined. Veh. Code, § 305.
• Driving Defined. Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d
753, 763–765 [280 Cal.Rptr. 745, 809 P.2d 404].
• Slight Movement Sufficient. Padilla v. Meese (1986) 184 Cal.App.3d 1022,
1029 [229 Cal.Rptr. 310]; Music v. Dept. of Motor Vehicles (1990) 221
Cal.App.3d 841, 850 [270 Cal.Rptr. 692].
Secondary Sources
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02[1][c] (Matthew Bender).
RELATED ISSUES
Circumstantial Evidence
Driving may be established through circumstantial evidence. (Mercer v. Dept. of
Motor Vehicles (1991) 53 Cal.3d 753, 770 [280 Cal.Rptr. 745, 809 P.2d 404].) For
example, in People v. Wilson (1985) 176 Cal.App.3d Supp. 1, 9 [222 Cal.Rptr.
540], the court found sufficient evidence of driving where the vehicle was parked
on the freeway, over a mile from the on-ramp, and the defendant, the sole occupant
of the vehicle, was found in the driver’s seat with the vehicle’s engine running.
Engine Need Not Be On
In People v. Hernandez (1990) 219 Cal.App.3d 1177, 1184 [269 Cal.Rptr. 21], the
court held that the defendant was “driving” because he was “seated in the driver’s
seat steering or controlling the truck while it was still moving, even though the
engine was no longer running.” (See also People v. Jordan (1977) 75 Cal.App.3d
206
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Supp. 1, 9 [142 Cal.Rptr. 401] [defendant “driving” a moped when she moved it by
pedaling, even though the engine was not on].)
Steering Vehicle
In In re Queen T. (1993) 14 Cal.App.4th 1143, 1145 [17 Cal.Rptr.2d 922], the court
held that the minor was “driving” when she steered the vehicle, even though
someone else was sitting in the driver’s seat operating the accelerator and brake.
Relocating Vehicle in Accident
In People v. Kelley (1937) 27 Cal.App.2d Supp. 771, 773 [70 P.2d 276], the court
held that the defendant was not “driving” when he got in the driver’s seat and
steered a disabled vehicle, moving it four or five feet to a safe location following
an accident. The court specifically stated that its holding was based on the unique
facts of the case and that it was not attempting to “give a definition to the word
‘drive.’ ” (Id. at p. 775.)
2242–2299. Reserved for Future Use
VEHICLE OFFENSES CALCRIM No. 2241
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