There are certain driving scenarios that are not so clear as to what the definition of “driving” is when it comes to a DUI. If you get pulled over driving your vehicle and you are intoxicated, it is pretty hard to say that you weren’t driving. Obviously, you were driving because you got pulled over. Well, what happens if you feel the one shot you had 25 minutes ago start to kick in? What if you are in the middle of the highway when you feel a little alcohol buzz coming on? Do you keep driving? Or do you pull over to park your car and take a nap and let the booze wear off? What if a cop happens to pass your car while you are in the front seat napping? Can you be charged with driving under the influence if the car is stationary? Can you get a DUI for sleeping in your parked car? In this scenario, it is not as obvious as to what the definition of driving is.
According to the Colorado DUI bench book, “a defendant is deemed to be ‘driving’ a motor vehicle under the DUI statute whenever he is in actual physical control of the vehicle, regardless of whether the vehicle is on a public highway and regardless of whether the vehicle is actually moving or moving under its own power.”
If you are in one of these scenarios, where you feel you were not driving the vehicle at the time of your DUI and if your attorney decides that the facts of your case meet the standards to file a motion to dismiss your DUI based on an absence of driving, these facts are usually disputed at trial. However, there are a few precedent cases that the judge and the attorneys need to take into consideration while disputing the facts. These cases have established what the ruling will be for certain scenarios where the defendant did not believe they were driving at the time of their DUI.
Brewer v. Motor Vehicle Division, 720 P.2d 564 (Colo. 1986) is the leading case on the issue of “driving” under a DUI. In this case, the driver was parked in a cul-de-sac with the engine and the car lights on. The defendant slumped behind the wheel asleep and or passed out. In this case, the test for driving was “whether the defendant was in actual physical control of a motor vehicle.” In terms of this case, because he was behind the wheel with the car on he had the ability to drive the vehicle regardless of the fact that he didn’t actually drive his vehicle.
Motor Vehicle Division v. Warman, 763 P.2d 558 (Colo. 1988) is another leading case in what constitutes “driving” under a DUI. In this case, the court found the defendant to be driving when he was found asleep in his parked vehicle,in a convenience store parking lot with the motor running and parking lights on. In this case, the court emphasized that the car could have been put in motion by minimal physical activity, even if the activity was unintentional. For example, his hand could have knocked the car into gear while he was asleep. It did not matter that the vehicle never was in motion but that it easily could have been put into motion.
In the case of Colorado Division of Revenue v. Lounsbury, 743 P. 2d 23 (Colo. 1987), the defendant was determined to be driving while he was seated in the front seat of his vehicle while a tow truck pulled it out of the snow bank. The fact that he was seated behind the wheel, with the engine on and the car in gear, lead him to be driving, even though he was not the reason the vehicle was in motion. The court emphasized that there is no requirement that the vehicle be moving under its own power and there is not minimum distance required to constitute driving. Again, it is the potential for the vehicle to be in motion that constitutes driving.
Furthermore, the court states in Caple v. Department of Revenue, 804 P.2d 873 (Colo. App. 1990) to constitute driving or actual physical control the vehicle need not be moving and the engine need not be running. In this leading case, the defendant was found in his car behind a bar. He was fastened to his seat belt, the car was not running but the keys were in the ignition in the “on” position and the dashboard was lit with the radio was on. Because he could have easily placed the car into motion by minimal physical activity he was driving under the statute for a DUI.
You do not need to be pulled over in order to get a DUI. The court must find that you have physical control over the vehicle or that minimal physical activity can lead to control of the vehicle to be charged with a DUI. Do not get behind the wheel at all if you feel you are intoxicated. It is safer to stay away from your vehicle then risk being found passed out in the driver’s seat. Talk to an attorney about your options for a defense if you are charged with a DUI. Sometimes what seems obvious to us is not as obvious as we think in the statutes, especially when it comes to driving in terms of a DUI.
By Shannon Lynch