A Proven Criminal Defense Team

Can I get a DUI if I wasn’t actually driving?

On Behalf of | Jul 8, 2020 | Drunk Driving Charges |

You’ve gone out to the bar or to a friend’s house and have had a few drinks. You decide to call it a night and as you’re driving home you realize you’re more impaired than you think. You believe that the responsible thing to do is to pull over and sleep it off. You’re rudely awakened by flashing lights and suddenly find yourself placed under arrest for suspicion of drunk driving.

Wait a minute. Doesn’t the “D” in DUI stand for driving? You know this is a legal issue when the answer is, “Yes, but with exceptions.” The exception concerns whether you were in actual physical control of the vehicle at the time of your arrest.

Could you have driven if you’d wanted to?

Case law in Colorado has stated that if a person has actual physical control of a vehicle they may be charged with DUI. “Actual physical control” is a fancy way of determining how easy it would be for you to drive away under the circumstances.

For example, if you pull over and leave the engine running while you sober up in the driver’s seat, there’s a strong case to made that you were in actual physical control of your vehicle. If you toss the keys under the car while making your way to the back seat to sleep it off, the state’s case becomes shakier.

Of course, anytime you believe you’ve had one too many, you should seek an alternate way of getting home. However, if this realization comes too late and you decide to pull off the road, make sure you’re in a position where operating your car would be difficult. If you do find yourself arrested for suspicion of DUI, remember that you have rights. A skilled legal professional can help you explore your defense options.


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