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Ep 926-927 - Google Drive

IgE-mediated chronic diseases have classically been treated with antihistamines, corticoids, and other anti-inflammatory medications, but a number of patients do not respond to these treatments. The discovery and characterization of the pathways that drive different asthma phenotypes and our growing understanding of the pathophysiology of chronic urticaria (CU) have opened up new avenues for their treatment. To target the IgE with biological drugs has been pursued in the treatment of more severe cases of these pathologies.

Ep 926-927 - Google Drive

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The superior court issued a writ of mandate directing the Department of Motor Vehicles (DMV) to set aside its order revoking Barrie Gray Mercer's driving privileges after Mercer refused to submit to chemical testing following his arrest for driving under the influence of alcohol. (See Veh. Code, 23157, subd. (a)(1)fn. 1 [driver's implied consent to chemical testing following "lawful arrest" for violation of 23152]; 23152, subd. (a) [hereafter section 23152(a)] [unlawful for any person who is "under the influence" of alcohol or drugs to "drive a vehicle"]; 13352, subd. (a)(3) [suspension or revocation of driving privilege for refusal to submit to testing pursuant to 23157].) The Court of Appeal reversed and directed the superior court to reinstate the revocation order.

We address today only the narrow question of whether, under sections 23157 and 13353 as presently written, the state may suspend or revoke a driver's license for failure to submit to chemical testing in the absence of evidence of observed volitional movement of a vehicle.

At a revocation hearing held at Mercer's request pursuant to section 14100 et seq., the following facts were adduced: In response to calls from neighbors, a police officer found Mercer slumped over the steering wheel of his car. His seat belt was fastened, the car lights were on, and the engine was running. The car was legally parked against the curb of a residential street. Mercer awoke after the officer rocked the car and banged on it with a flashlight. According to the officer, when Mercer "finally [came] around, he started pulling gears [on the manual transmission] as if ... in his mind, he was already driving or about ready to drive." Eventually Mercer ceased attempting to put the car in gear and rolled down the window, at which point the officer detected a heavy odor of alcohol on Mercer's breath and ordered him out of the car.

In relevant part, the law today-and at the time of the offense-reads as it did when enacted in 1966. Section 23157, subdivision (a)(1) provides: "Any person who drives a motor vehicle is deemed to have given his or her [53 Cal. 3d 759] consent to chemical testing ... for the purpose of determining the alcoholic content of his or her blood, ... if lawfully arrested for any offense allegedly committed in violation of Section 23152 or 23153. The testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of Section 23152 or 23153. The person shall be told that his or her failure to submit to ... the required chemical testing will result in a fine [and various terms of license suspension or revocation, depending on the person's prior 'drunk driving' record]." (Italics added.)

Section 23152-one of the two substantive offenses referred to in section 23157-provides: "It is unlawful for any person who is under the influence of an alcoholic beverage or any drug ... to drive a vehicle." ( 23152(a), italics added.) The other substantive offense listed in section 23157 ( 23153) contains identical operative language.fn. 2

"However, the shocking number of injuries and deaths on the highways caused by drunk drivers has compelled society to adopt extreme measures in response. By its enactment in 1966 of section 13353, the Legislature devised an additional or alternative method of compelling a person arrested for drunk driving to submit to a test for intoxication, by providing that such a person will lose his automobile driver's license for a period of six months if he refuses to submit to a test for intoxication. The effect of this legislation is to equip peace officers with an instrument of enforcement not involving physical compulsion. It is noteworthy that in so doing, the Legislature took pains to condition its use upon a lawful arrest for driving under the influence of intoxicating liquor and upon the reasonable belief of the peace officer that the arrestee was in fact so driving." (6 Cal.3d at pp. 764-765, italics added.)

Music, supra, 221 Cal. App. 3d 841, and the decisions supporting it, reasons that the phrasing of section 23152(a) (making it illegal for an intoxicated person "to drive a vehicle") discloses legislative intent that some vehicular movement, however small, be established as an essential element of the offense. The Court of Appeal below disagreed, asserting, "Any 'reasonable person would construe the phrase "to drive a vehicle" ... as encompassing any act or action which is necessary to operate the mechanism and controls and direct the course of a motor vehicle.' " (Quoting Wilson, supra, 176 Cal. App. 3d Supp. 1, 6.)

The Court of Appeal concluded, "Where an intoxicated driver actually asserts such a degree of control over a vehicle stopped along a curb on a public street with its engine running that it is plain he will momentarily resume travel along the public roads, he is 'driving' in the sense intended in section 23152, subdivision (a) and provides a percipient police officer 'reasonable cause to believe [the driver] has committed a public offense in his presence.' (Pen. Code, 836, subd. 1.) The mere fact that the vehicle never moved in [the officer's] presence does not invalidate [Mercer's] arrest for drunk driving under the circumstances of this case." The court noted that the Legislature's policy of deterring drunk driving supported a broad interpretation of the word "drive," and suggested that absurd results would occur if police officers were made to wait for an intoxicated person to "lurch [the vehicle] forward" before making an arrest for drunk driving.

In everyday usage the phrase, "to drive a vehicle," is understood as requiring evidence of volitional movement of a vehicle. Numerous dictionary definitions-including Webster's Third New International Dictionary (1981), cited by the Court of Appeal below, support a definition of "drive" that includes movement. (See, e.g., id., at p. 692.)fn. 5 We believe these definitions are consistent with the usual and ordinary understanding of that term, and suggest the sense in which the word was intended by the Legislature in the present context.

The use of similar terms in related statutes also suggests the Legislature intends the word "drive" in section 23152(a) to have a narrow rather than broad scope. Section 305, defining the noun "driver" for purposes of construing the Vehicle Code, provides, "A 'driver' is a person who drives or is in actual physical control of a vehicle. ..." Section 13353.2 likewise states the DMV "shall immediately suspend the privilege of any person to operate a motor vehicle if the person was driving or was in actual physical control of a motor vehicle" while having a prescribed blood-alcohol level. Similarly, section 12501 states that certain persons "driving or operating" vehicles are exempt from the general rule requiring a "driver's license." (Id., subds. (b) & (c).) The use of the disjunctive "or" in these statutes suggests the Legislature recognizes a distinction between one who "drives" a vehicle and one who "operates" or "is in actual physical control of" a vehicle, and that the [53 Cal. 3d 764] Legislature knows how to broaden the scope of coverage when it wants to do so.fn. 6

Any doubt about our understanding of the word "drive" is dispelled by decades of case law holding that the word "drive," when used in a drunk driving statute, requires evidence of a defendant's volitional movement of a vehicle. (See, e.g., Underwood v. State (1931) 24 Ala.App. 191 [132 So. 606, 607]; State v. Graves (1977) 269 S.C. 356 [237 S.E.2d 584, 586-588] [Graves]; Annot. (1926) 42 A.L.R. 1498, 1501; Annot. (1956) 47 A.L.R.2d 570, 573; Annot. (1979) 93 A.L.R.3d 7, 15.) The analysis employed in Graves, supra, 237 S.E.2d 584, is typical. The court noted that the South Carolina statute-which like section 23152(a) prohibits "any person ... who is under the influence [of alcohol, etc.], to drive any vehicle"-is penal in nature. Thus, the court reasoned, "we must approach its interpretation by invoking the rule of strict statutory construction and resolve any uncertainty or ambiguity against the State ...." (Graves, supra, 237 S.E.2d at p. 586.)

"The distinction between these terms is material, for it is generally held that the word 'drive,' as used in statutes of this kind, usually denotes [53 Cal. 3d 765] movement of the vehicle in some direction, whereas the word 'operate' has a broader meaning so as to include not only the motion of the vehicle, but also acts which engage the machinery of the vehicle that, alone or in sequence, will set in motion the motive power of the vehicle." (Graves, supra, 237 S.E.2d at p. 586.)fn. 8

Graves concluded that under South Carolina's statute, "the word 'drive' requires the vehicle to be in motion to constitute the offense,"fn. 9 and invited the Legislature to amend the statute by adding the words "or operate" if it wished to broaden the scope of the drunk driving law. (237 S.E.2d at p. 586.)fn. 10

Of our six sister states that have retained statutes that prohibit simply "driving," it appears five have directly addressed the question whether evidence of volitional movement must be established to constitute "driving." Two-South Carolina and West Virginia-have interpreted that term as requiring evidence of volitional movement. (Graves, supra, 237 S.E.2d 584, 586-588 [discussed ante]; State v. Taft, supra, 102 S.E.2d 152, 154 [volitional "movement of a vehicle is an essential element of the statutory requirement"].) North Carolina, relying on related state statutes, has determined its legislature intended that "drive" be synonymous with "operate," [53 Cal. 3d 768] and therefore motion need not be established. (State v. Coker, supra, 323 S.E.2d 343, 347.)fn. 20 Finally, Colorado and New Mexico have interpreted "drive" as meaning "actual physical control," and hence not requiring evidence of movement. (Brewer v. Motor Vehicle Div., Dept. of Rev. (Colo. 1986) 720 P.2d 564, 566- 567; Boone v. State (1987) 105 N.M. 223 [731 P.2d 366, 368- 369].) 041b061a72


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