DUI Appeal - California Says that Pocket Bike is a Vehicle

In People v. Varela, --- Cal.Rptr.3d ----, 2011 WL 1126036 (Cal.App. 2 Dist.), 11 Cal. Daily Op. Serv. 3771, while riding a pocket bike, defendant Martin Varela evaded a police officer who was attempting to stop him. A two-wheeled device with a motor and a seat for a driver is called a “pocket bike.” On appeal the defendant claimed that the pocket bike was not a motor vehicle because, inter alia, it was not designed for roadway travel. Analyzing the issue, the appeals court wrote:
“A ‘vehicle’ is 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.”

Section 415 defines a “ ‘motor vehicle’ [a]s a vehicle that is self-propelled.” Under the broad definition of motor vehicle it is not required that the vehicle be legally self-propelled on a highway. (citation)

Section 473 defines a “ ‘pocket bike’ [a]s a two-wheeled motorized device that has a seat or saddle for the use of the rider, and that is not designed or manufactured for highway use.”

A pocket bike comes squarely within the definition of motor vehicle. To hold otherwise would require that we ignore the plain meaning of sections 415 and 670.

Varela argues that legislative history refers to a pocket bike as a “device” and not a vehicle. (Citing Sen. Transportation & Housing Com., Analysis of Assem. Bill No. 1051 (June 7, 2005); Sen. Rules Com., Analysis of Assem. Bill No. 1051 (June 30, 2005).) But we are compelled by statute to conclude that a pocket bike is a type of device that comes within the definition of a motor vehicle. There is nothing inconsistent about referring to a motor vehicle as a device.

Nor did the trial court err in instructing the jury that a pocket bike is a motor vehicle. Because a pocket bike falls squarely within the statutory definition of a motor vehicle, it is a motor vehicle as a matter of law."


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DUI Appeal of the Day - Hearing Officer's refusal to authorize subpoena improper

In Florida Dept of Hwys and Motor Vehicles v. Auster, --- So.3d ----, 2010 WL 5391552 (Fla.App. 5 Dist.), the defendant sought to challenge her suspension for refusing a breath test, based upon her claim that she had timely recanted her refusal to submit to a breath test. In that regard, she sought to subpoena the breath technician to confirm her claim. The hearing officer, upon whose authority the subpoena must issue, refused to authorize the same. She then lost the hearing, and appealed. On appeal, the court stated:

A hearing officer is expressly authorized to issue subpoenas for officers and witnesses identified in the documents submitted by a law enforcement officer pursuant to section 322.2615(2). See § 322.2615(6)(b), Fla. Stat. (2008). Here, Caner was identified in these documents. Furthermore, according to DHSMV's own rules, the procedural due process rights afforded a driver seeking formal review of a license suspension under section 322.2615 include “the right to present evidence relevant to the issues, to cross-examine opposing witnesses, to impeach any witness, and to rebut the evidence presented against the driver.” See Fla. Admin. Code R. 15A-6.013(5). The question of whether Auster timely rescinded her refusal to submit to a breath test is a relevant issue.

Continuing, the appellate court held that:

Where the witness' expected testimony would be relevant to the issues within the limited scope of the review hearing and would not be clearly cumulative, due process considerations require the hearing officer to issue a subpoena if the hearing officer has the authority to do so.

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DUI satire compliments of The Onion

Here's a priceless piece of vintage satire from the Onion: "DMV Reconsidering 'One For The Road' Driver Relaxation Campaign." Here are a few choice excerpts from the 1997 tongue-in-cheek article:

SPRINGFIELD, IL—With the drunk-driving fatality rate nearly tripling in Illinois in the past year, the state's Department of Motor Vehicles announced Monday it will re-examine its controversial "One For The Road" driver-relaxation promotional campaign...

According to Penn, the One For The Road program had its roots in a DMV study revealing a positive correlation between alcohol consumption and driver confidence.

"We found that people who had consumed at least four beers or two mixed drinks before getting behind the wheel were twice as likely to believe they were in no danger of getting hurt or killed," Penn said. "When operating a serious piece of machinery like a car, that's just the kind of confidence you need."...

In the time since the September 1996 launch of One For The Road, some 2,300 DUI-related fatalities have occurred in Illinois, a 275 percent increase over the previous year.

"Perhaps we need to reconsider certain aspects of the program," said Bill Gerhardt, co-creator of the program. "We need to ask ourselves, 'What parts of this program are not working, and how can we fix them?'"...

While Illinois DUI laws aren't perfect, at least our legislators have a bit more common sense than the fictional characters in this article.

And, if you're so inclined, you can read the entire article here.

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