Denver DUI Attorney Blog

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.

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

The best decision that you can make if you are impaired (even to the slightest degree) or intoxicated is to never get behind the wheel of a vehicle. Period. Because alcohol impairs judgment, sometimes a person will start to drive and later realize that he/she is not safe to drive; and pull over alongside of the road and "sleep it off" or call a sober driver for a ride. From a moral standpoint, this is the absolute best action to take. Who in their right mind would argue that an impaired or intoxicated driver should continue driving? Not me.

Unfortunately, it's not a good idea from a DUI defense standpoint to stop along side the road if you're intoxicated or impaired. A couple of cases always seem to rear their ugly heads in this situation. Firstly, in Colorado, you don't have to be "driving" a vehicle (in motion) to be convicted of a DUI. You simply need to be in "actual physical control". Actual physical control is determined by the totality of the circumstances to include: 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's ignition; 4) whether or not the motor 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 everyday experience. The jury will get this instruction if it is relevant to the case and the Court lets it in. These factors come from the Colorado Supreme Court's decision in People v. Swain, 959 P.2d 426 (Colo. 1998).

Secondly, you don't actually have to commit a major traffic offense or minor traffic infraction to be contacted by the police in your car. If you're already stopped, the Court says that the police can "request your voluntary cooperation". Make no mistake about it, an experienced police officer is well-versed in how to shake you down a/k/a "initiate a consensual encounter" when you are already stopped. I find this phrase rather amusing. When a citizen is contacted by the police, it doesn't seem like there is ever anything "consensual" about it. However, the Colorado Supreme Court indicates that there are situations when a citizen is voluntarily cooperating with the police when the police questions start to fly.

According to the Court, not all police-citizen encounters implicate the Fourth Amendment. It held in People v. Marujo, 192 P.3d 1003 (Colo. 2008) that a "consensual encounter" is not a seizure, but rather a request for cooperation that does not implicate the Fourth Amendment. The Court held that there are three general categories of police-citizen encounters: 1) arrest; 2) investigatory stop; 3) consensual interview. The first two categories implicate the Fourth Amendment, whereas the latter does not.

The Court goes on to enumerate the following factors in an attempt to distinguish an investigatory stop, which requires reasonable suspicion of criminal activity, from a consensual encounter: 1) whether there is a display of authority or control over the defendant by activating the siren or any patrol car overhead lights; 2) the number of officers present; 3) whether the officer approaches in a non-threatening manner; 4) whether the officer displays a weapon; 5) whether the officer requests or demands information; 6) whether the officer's tone of voice is conversational or whether it indicates that compliance with the request for information might be compelled; 7) whether the officer physically touches the person of the citizen; 8) whether an officer's show of authority or exercise of control over an individual impedes that individual's ability to terminate the encounter; 9) the duration of the encounter; 10) whether the officer retains the citizen's identification or travel documents. The Court further held that in order for the police-citizen interaction to rise to the level of seizure with Fourth Amendment protections, the obligation to comply must exceed the obligation an innocent citizen would normally feel to cooperate.

If you were trying to do the right thing and pulled-over to sober-up, but are now charged with a DUI, it's a good idea to get help from an experienced DUI attorney. How you are initially contacted may be crucial to your defense. Even though the Marujo case makes it easy for police to initiate contact with a parked motorist, they still need to follow a very specific protocol, otherwise, their request for cooperation quickly becomes a seizure within the Fourth Amendment. Thus, the bright side of the Marujo case for a defendant is that it gives a knowledgeable DUI defense attorney a lot of issues to argue to the prosecutor and the Court.

Continue reading "Driver Beware: If you're pulled-over alongside the road in Colorado "sleeping it off", you might be fair game for the cops." »