Colorado DUI - "But I wasn't driving"
by
John Buckley on Feb. 26, 2020
Summary: A defendant need not be driving to be charged with DUI in Colorado. However, there are many factors to defend against the actual physical control element of DUI.
Many clients report that they weren't actually driving but are still charged with DUI.
In Colorado, and many other states, you need not be driving but only be in "actual physical control" of the vehicle.
Actual physical control defined
Unfortunately, there is no clear cut answer here. The statute itself does not define actual physical control.
Actual physical control interpreted by the courts
There are a number of factors which a jury may take into account when deciding whether or not a driver was in actual physical control. Among them are where the vehicle was found, whether or not the accused occupied the driver's seat, whether the defendant was conscious or unconscious, whether the seat belt was fastened, whether the windows were up or down, whether or not the key was in the ignition turned to the "on" position, whether or not the engine was running, whether or not the headlights or dashlights were on or off, whether the vehicle was on public or private property, or whether not the parking brake was engaged.
Could the vehicle been put in motion with minimal effort?
Another theory involves whether the vehicle could be put in motion with minimal effort. Some of the previous factors come into play here. Basically, could some minimal effort such as taking the foot off of the brake pedal or placing the car into gear, have put the car into motion? If so, a jury can find the defendant guilty of DUI. If not, the prosecution will have a challenge being able to prove this element of the crime beyond a reasonable doubt.
Intent to Drive
Another theory of defense is whether the driver had any intent to drive the vehicle. This most often comes into play when the officer finds the defendant asleep in their car on the side of the road. If it can be established to a jury's satisfaction, this lack of intent to drive may well be the deciding factor in a defendant's innocence.
Consult with a qualified attorney
As always, information gathered here should not take the place of a true consultation with a qualified attorney in your jurisdiction.