Can you be arrested for a DUI in Colorado even if you're not driving?

October 24, 2011

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The short answer is yes. You can be charged, and you might be convicted. However, just because you may have been arrested for a DUI in Colorado, doesn't mean that the prosecution will get a conviction. The conviction is what matters. You're innocent of the DUI until they prove it.

If you go to trial on a DUI in Colorado, the jury will get an instruction as to the elements of the charge, to include that: 1) the defendant; 2) in the State of Colorado, at or about the date and place charged; 3) drove (or was in actual physical control of) any vehicle; 4) while under the influence of [alcohol] [drugs] [a combination of alcohol and drugs].

Driving a vehicle is self-explanatory. Actual physical control is a little more subjective. This is where the "fun" starts.

The Colorado Supreme Court opinion in People v. Swain, 959 P.2d 426, 430 (Colo. 1998) is the most up-to-date case on the meaning of "actual physical control". According to the case, actual physical control is to be determined by the "totality of the circumstances". The Swain court looked to the following factors to determine if a person was in actual physical control: 1) where the vehicle was found; 2) where in the vehicle the person was found; 3) whether or not the keys were in the motor vehicle's ignition; 4) whether or not the motor vehicle was running; 5) any other factor which tends to indicate that the person exercised bodily influence or direction over a motor vehicle or not based upon your every day experience. No one factor definitively decides whether or not a person was in actual physical control of a motor vehicle.

Thus according to Swain, a car doesn't have to actually be moving down the road for an occupant to be determined to be in actual physical control, and thereafter be convicted of DUI. On the other hand, DUI cases can be won on these factors as well. Thus, although the common sense meaning of driving has been expanded, the above-referenced factors can be very helpful at beating a case where there is no movement of the vehicle.

It is important to note that the list of factors in Swain is not exclusive. Additional factors may be considered under the blanket language of factor number 5 ("any other factor") listed above.

Whether or not the defendant allegedly drove on a public road, private road, or private property is not a factor. The Colorado Supreme Court held in Motor Vehicle Division v. Warman, 763 P.2d 558 (Colo. 1988) that Colorado's Express Consent Statute applied to private parking lots.

There have been many cases previous to Swain that have pondered unique fact patterns to determine the boundaries of actual physical control. These cases are sometimes helpful in fighting a DUI allegation where driving is not witnessed.

If you've been charged with DUI or DWAI anywhere in Colorado, call Attorney Monte J. Robbins for a free case evaluation at his Denver office at 303-355-5148 or his Greeley office at 970-301-5541.