Can I get a DUI for Sleeping in a Parked Car?

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.

 

 

Study Shows Hypothyroidism Can Result in Impaired Driving

As reported by HNGN, a team of researchers from the University of Kentucky and the Veteran’s Affairs Center in Lexington report finding that untreated hypothyroid patients being tested on a driving simulator had a similar performance to that of drivers with a blood alcohol level above the legal limit in the U.S.

“The study findings further showed that the patients with hypothyroidism who also suffered symptoms of depression, took longer to brake on driving simulation tests. Researchers found that their performance was similar to drivers with a blood alcohol level of 0.082.”

Past studies have shown that hypothyroidism could interfere with cognitive abilities, but this is the first studying the effect on driving performance.

The press release appears in the June 23, 2014 edition of Science Daily.

The findings could have an impact on DUI defense since many persons who suffer from hypothyroidism often need to have their medicinal dosages modified in the normal course of treatment.

Comprehensive Denver DUI Defense

Comprehensive Denver DUI Defense | Criminal Law DenverDriving under the influence (DUI) or drunk driving are terms that both carry the dubious distinction of a severe wrongdoing. After all, there is little sympathy in the court of public opinion for those who choose to get behind the wheel after a night of excessive drinking. Especially those who end up getting in an accident and injuring — or worse — an innocent victim and must face a host of charges after they sober up. The truth is that in the event you are pulled over for suspected drunk driving, hiring Denver DUI defense would be in your best interest.

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DUI Words of Wisdom About Responsible Decision-Making

DUI Words of Wisdom About Responsible Decision-Making | Criminal Law DenverIf you are like most people, you enjoy having a drink every now and again. While no one would begrudge that, the simple fact is that sometimes drinking can be taken too far. One good example of this is in the case of a DUI. Being saddled with a DUI can be damaging in many ways. Monetarily, you have to spend quite a bit on legal fees, such as hiring a DUI attorney. Your reputation could take a hit, and, depending on your professional circumstances, your job could even be put into jeopardy. Here are some tips that you can follow to avoid getting a DUI.

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DUI Lawyers Answer Questions About the Law, What to Expect in Court

DUI Lawyers Answer Questions About the Law, What to Expect in Court | Criminal Law DenverAn arrest or conviction for driving under the influence (DUI) is a considerable violation with potential life changing consequences. In fact, defendants face serious outcomes if convicted. Undeniably, DUI cases involve many layers of analysis and are quite complex. For this reason, hiring a lawyer specializing in DUI defense immediately after being arrested is critical unless the defendant intends to please guilty. Furthermore, accomplished DUI lawyers answer questions about the law and what procedures to expect in court.

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2014 Promises Big Changes for Colorado DUI Laws

2014 Promises Big Changes for Colorado DUI Laws | Criminal Law Denver

What does it mean to be persistent? According to online dictionary sources, persistent means: continuing firmly or obstinately in a course of action in spite of difficulty or opposition. Which of course, can mean a good thing, for example in the pursuit of a college degree or career aspirations. However, the word ‘persistent’ when used in conjunction with Colorado’s DUI laws is not a good thing. As a matter of fact, if you find yourself facing ‘Persistent Drunk Driving’ charges, you will need to seek Denver DUI defense immediately.

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Travis Zeigler joins Tiftickjian’s DUI Defense Team

DUI lawyer TravisDefense attorney Travis Zeigler has litigated hundreds of DUI and criminal cases in Colorado courts, and on October 1 he joins the team at Tiftickjian Law Firm.

A Colorado native, Mr. Zeigler is admitted to practice in Colorado and The United States District Court. Over the course of Mr. Zeigler’s legal career, he has focused solely on criminal defense. Zeigler has represented hundreds of clients in and around Denver, and litigated cases ranging from minor traffic offenses, petty offenses, misdemeanors, and serious felonies.

In law school, he was a member of the Honors Program and earned Semester Honors over four semesters. Mr. Zeigler also clerked for a Chief Judge of the United States District Court. Mr. Zeigler graduated in the top ten-percent of his law school class.

“I have watched Travis in court over the past few years and have always been impressed with his demeanor and attention to detail that he puts into his cases,” says Jay Tiftickjian, the law firm’s president. The DUI attorneys at Tiftickjian Law Firm represent clients both in the metro area and also in Colorado’s mountain communities through its satellite office in Aspen.

 

Amanda Bynes – Competent to Be Tried for DUI?

Actress Amanda Bynes failed to appear in court on Tuesday, according to the Huffington Post, because her DUI attorneys claim that she is not fit to stand trial.

The actress has been under a doctor’s care since July. In past news, she is alleged to have set fire to a driveway and was put on a mental health hold for 72 hours before being housed in an inpatient facility for 30 days.

What does it mean to be incompetent to stand trial? In Colorado, the case most frequently cited is People v. Mondragon, 217 P.3d 936 (Colo. App. 2009). In Mondragon, the Colorado Appellate Court sets forth the procedure when a defendant in a criminal case asserts that he or she is incompetent to stand trial. A court must hold a hearing to determine if the defendant is competent to proceed, and the party asserting the incompetency has the burden of submitting evidence and the burden of proof by a preponderance of the evidence. This means that if the prosecution asserts the incompetency, the government must prove it. More often than not, it is the defendant that asserts it, and therefore his or her defense attorneys that must assert it.

According to Colorado law, “a defendant must have ‘a sufficient present ability to consult with his counsel with a reasonable degree of rational understanding, and a present rational and factual understanding of the proceedings against him.’” Id., citing People v. Morino, 743 P.2d 49, 51 (Colo. App. 1987). A defendant lacks the requisite rational understanding if he does not have “a sufficient contact with reality”, i.e., “if his mental condition precludes him from perceiving accurately, interpreting, and/or responding appropriately to the world around him.”

While not in Colorado, the DUI case of Amanda Bynes is interesting and brings up issues dealing with mental competency in criminal cases.

New Refusal and Multiple Offender Colorado DUI Laws for 2014

IMG_4628On Friday, DUI attorneys Jay Tiftickjian and Adrienne Bershinsky presented A Brave New World: Driver’s License Revocation and Reinstatement Updates, reflecting on how the new laws will help drivers revoked for DUI refusal cases and multiple offenders. The presentation took place in the Weld County Court’s jury assembly room and was attended by approximately 40 practitioners from across Colorado.

In 2014, the Colorado DUI laws will change to allow motorists that lose their license from a refusal case as well as from multiple DUI or DWAI offenses to reinstate with a restricted driver’s license. A restricted license subjects someone to the use of an ignition interlock device. Previous to this new law, there was little relief for drivers that were suspended based on a DMV hearing where a refusal was found or that lost driving privileges based on multiple convictions.

Come January 2014, drivers that are revoked for one-year based on a determination that they refused a test will be allowed to reinstate their drivers’ licenses after two-months. In order to do so, the driver must have an ignition interlock device installed in his or her vehicle for two-years. Also, multiple offenders who suffer a driver’s license loss will be able to reinstate after one month of no-driving, provided they also go through the DMV reinstatement process and get an ignition interlock device installed in their cars. This means that a person with multiple DUI convictions can drive after one-month, or two-months in the case of a refusal.

The persistent drunk driver designation will also change in 2014. Drivers that refuse a test, have a BAC of 0.15 or more, or are multiple offenders will be considered persistent drunk drivers and must have an interlock device in their cars upon reinstatement for at least two years. This lowers the current BAC persistent drunk driver limit from 0.17 and adds first-time refusal cases to the mix.

The Department of Revenue will also allow drivers that are under a current revocation from a case prior to January 1, 2014 to reinstate if serving a revocation from a refusal or multiple offenses. In order to do so, the person must apply for early reinstatement under the new guidelines, which have not been officially released by the DMV’s drivers’ services yet.

Finally, revocations for minors (drivers under 21) will not change. For a first DUI or DWAI, a minor driver will still face one-year of no driving.

Colorado DUI Lawyers Featured in New Book on Search and Seizure

Colorado attorneys Jay Tiftickjian and Timothy Bussey both appear in the new Thomson-Reuters book, The Legality of Search and Seizure in DUI Cases. Tiftickjian coauthored a chapter with Bakersfield DUI defense lawyer Jeremy Brehmer, focusing on forced blood draws after the United Supreme Court’s decision in Missouri v. McNeely. Bussey’s chapter concentrates on challenges of search and seizure issues in DUI cases.

From the author:

The Legality of Search and Seizure in DUI Cases provides an authoritative, insider’s perspective on best practices for identifying and litigating Fourth Amendment violations in DUI cases. Written by partners and chairs from some of the nation’s leading law firms, this book guides the reader through the proper search and seizure procedures and NHTSA standards that law enforcement should follow during the initial stop, investigation, and DUI arrest.

These authors also discuss the mistakes that officers make during this process, and how lawyers can explore and exploit these errors to reclaim a client’s rights under the Fourth Amendment. Emphasizing the science that serves as the backdrop for searches and seizures in DUI cases, these authors also provide the necessary guidance for helping clients understand the key issues that arise during a DUI case. Finally, these leaders examine the latest trends and caselaw in the enforcement and prosecution of DUIs and reflect on how they affect defense strategies, clients, and counsel.

The different niches represented and the breadth of perspectives presented enable readers to get inside some of the great legal minds of today, as these experienced lawyers offer up their thoughts on the keys to success within this ever-evolving field.

“I am honored to join such high-caliber attorneys in the completion of this book,” says Tiftickjian. “The Colorado DUI defense bar has some of the best DUI lawyers in the country, and no doubt Mr. Bussey falls in that category.” Tiftickjian was also honored work with Brehmer, noting his past experience in the forensics laboratory before becoming a DUI defense attorney.

You can follow Tiftickjian Law Firm at @DUI5280, and visit our Colorado DUI news website at http://www.mydenverduilawyer.com.

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