Can I be charged with a DUI in Colorado even if I’m not driving?

If you spend any extended amount of time in Colorado and the topic of DUI charges comes up in conversation, you will eventually hear about the famed Colorado Supreme Court case, People v. Swain, a late ‘90s case in which Robert Swain was found guilty of driving while ability impaired after being found sleeping it off in his vehicle pulled off to the side of the road. This story and related cases have created a sort of urban legend surrounding drinking and driving, with people often wondering: “Can I be charged with a DUI in Colorado even if I’m not driving?” The simple answer to this question is yes, but it truly depends on the circumstances surrounding the arrest.  

Factors In Deciding “Actual Physical Control”

Colorado law defines driving as being in “actual physical control” of a vehicle, a term which was defined to an extent in People v. Swain and then expanded on in the 2008 case People v. VanMatre. Whereas the common sense understanding of driving typically necessitates that the car be in motion, actual physical control is established using other factors, including the following:

  • Where was the vehicle found?
  • Where inside the vehicle was the defendant found?
  • Were the keys in the vehicle’s ignition?
  • Was the vehicle running?
  • What is the vehicle’s operability?
  • Did the defendant have the apparent ability to start the vehicle?
  • Was the defendant conscious?
  • Was the vehicle’s heater/AC running?
  • Were the windows up or down?
  • Do any other factors tend to indicate the defendant exercised bodily influence or direction over the vehicle?

None of these factors separately can indicate actual physical control. Instead, ALL circumstances must be taken into account in order to determine actual physical control.

Defending Against a DUI or DWAI With No Witnessed Driving  

If you’re facing a DUI or DWAI charge with no witnessed driving, contact the DUI lawyer at the Law Office of Warren D. Price. Attorney Price understands what’s at stake and wants to help.