Can I get a DUI in Colorado in a Self-Driving Car?

The progress of self-driving or semi-autonomous vehicles has advanced faster than the Colorado Revised Statutes related to driving under the influence. As a defense attorney, I am frequently asked whether a person can get a DUI in a self-driving car.

As of this publication, fully self-driving (Level 5) cars are not widely available to consumers, but semi-autonomous vehicles (Levels 2–4) are widespread on public highways. Typical examples are the Tesla Model 3, Model Y, Model S, Model X, and the Ford BlueCruise.

Riding in the driver’s seat of a self-driving or semi-autonomous vehicle does not exempt the driver from prosecution for DUI. Colorado’s DUI laws are broadly written and apply to anyone in actual physical control of a car, regardless of whether it is self-driving or semi-autonomous.

The most cited Colorado court case regarding the definition of driving is People v. Swain, 959 P.2d 426 (Colo. 1998). IN Swain, the Colorado Supreme Court addressed the definition of “driving” under Colorado’s Revised Statutes. The Court upheld a jury instruction that defined “driving” as being in “actual physical control” of a vehicle. Being in “actual physical control” means a person can be driving under the DUI laws even if the automobile is not moving or on a roadway. The Court ruled that “Actual Physical Control” is present when a person exercises bodily influence or direction over a vehicle, to be decided by a totality of the circumstances.

The jury instruction judges provide to juries in cases where driving is a contested issue is called the “Swain Instruction.” It instructs jurors that they may consider the following factors in deciding whether a person was driving:

• Where the vehicle was found.
• Where in the vehicle the person was found.
• Whether or not the keys were in the vehicle’s ignition.
• Whether or not the vehicle was running.
• And any other factor that indicates that the person exercised bodily influence or direction over a motor vehicle.

The instruction then states, “No one factor listed above definitively decides whether or not a person was in actual physical control of a motor vehicle.”

No Colorado appellate court has ruled explicitly on the issue of whether a driver in a self-driving or semi-autonomous vehicle can be prosecuted for DUI. Still, based on the precedent such as the Swain case and a survey of cases in other states, it is certain that Colorado will hold that a driver can, if challenged. One example is in California, where in 2018, a driver was arrested and charged with DUI when his Tesla Model S was running on Autopilot. The L.A. Times article detailing this incident states that Tesla vehicles “have the hardware needed for full self-driving capability at a safety level substantially greater than that of a human driver.” Still, there have been numerous accidents involving Tesla’s vehicles in autopilot mode. Therefore, Tesla instructs drivers always to keep their hands on the wheel.

In April 2025, a driver who was passed out at the wheel of a Tesla was arrested for DUI in Connecticut. State Police believe this is the first situation involving a semi-autonomous vehicle. The police attempted to pull over the car, but the “driver” first had to awaken to pull over. He was charged with impeding traffic, reckless driving, second-degree reckless endangerment, operation of a motor vehicle while under the influence of alcohol and/or drugs.

Given the above court caselaw and precedent from other states, it is certain that Colorado Courts will hold that a person in a self-automated vehicle can be prosecuted for driving under the influence.