I was sleeping in the car and got arrested for DUI? Do I have a defense if I wasn’t driving?
In Colorado, to prove DUI, the prosecution not only must prove that you were under the influence of alcohol or drugs, but also that you were driving a vehicle. Often, the most defensible case in court for a defense attorney is when the client was intoxicated but in-fact didn’t drive, or has al alternative reason for being in the car other than driving. Often this involves a situation where you leave a bar or party after drinking and decide to sleep in your car instead of driving home. Other times, a person decides to sit in their car for shelter or to leave a hostile situation in their home, such as a domestic dispute.
Under the Colorado DUI and criminal code, as well as caselaw, a person “drove” if he or she was in actual physical control of a motor vehicle. Courts hold that “actual physical control” is present when a person exercises bodily influence or direction over a motor vehicle; which is to be decided by a totality of the circumstances.
Factors that courts consider in whether or not a person was in actual physical control of a vehicle, include where the vehicle is found; where in the vehicle the person was found; whether or not the keys were in the ignition; whether or not the vehicle was running; and any other factor which indicates that the person exercised bodily influence or direction over a motor vehicle. No one factor definitively decides whether or not a person was in actual physical control of a motor vehicle to be convicted of DUI or DWAI.
Brewer v. Motor Vehicle Division, 720 P.2d 564, 567 (Colo. 1986), the Colorado Supreme Court addressed whether a defendant asleep in a car parked on a public street with the motor running “drove a vehicle” within the meaning of the DUI law. The court held that there was “driving” under the statute. In Dep’t of Revenue v. Warman, 763 P.2d 558 (Colo. 1988), the same court declared that “[a] person who places himself behind the steering wheel of a motor vehicle with its engine running is in actual physical control of the vehicle, since the vehicle can be put in motion by minimal physical activity, even if the activity might be unintentional. Two years later, in Caple v. Dep’t. of Revenue, 804 P.2d 873 (Colo. App. 1990), the court include instances when a motorist is in a motor vehicle with the engine off, but with the keys in the ignition in the “on” position could be driving under the DUI law because of the little amount of effort required to turn the motor vehicle on and put it in motion.
Colorado’s most popular “actual physical control” case is People v. Swain, 959 P.2d 426 (Colo. 1998), where the supreme court concluded that the defendant, who was found sleeping in his vehicle on the side of a highway exit ramp with the engine off, but with the keys in the ignition and music playing loudly, was driving.
In 2008, the supreme court in People v. VanMatre, expanded the holding in Swain by approving the following additional factors that may be considered by a jury when deciding whether a person was in actual physical control of a vehicle: the vehicle’s operability; whether the defendant had the apparent ability to start the vehicle; whether the defendant was conscious; whether the heater or air conditioner was running, and whether the windows were up or down. 190 P.3d 770, 772 (Colo. App. 2008), cert. denied, (Colo. Aug. 4, 2008).
While the cases certainly appear negative to the person accused of drunk driving, remember that these are appeal cases. This means that the defendant in thee cases (Mr. VanMatre, Mr. Swain, etc.) went to trial and the jury found them guilty. They then appealed the cases because of the conviction. Had they been found not guilty at trial, there would be non appeal because jeopardy would attach to the acquittal and they wouldn’t be able to be retried for the same allegation.