When facing allegations of a DUI or DWAI it is important to know key terminology. Obviously both charges involve “driving”, whether it is driving under the influence or driving while ability impaired.
The word “driving” is an important and sometimes misunderstood term that is pivotal to both offenses. It can be confusing because you do not need to be moving a motor vehicle from point A to point B in order to be charged with a DUI or DWAI.
When there is an arrest for DUI or DWAI, the fact finder will decide whether you were “driving” a motor vehicle by determining whether you were in “actual physical control” of the vehicle. This terminology came from a landmark case, People v Swain, 959 P.2d 426, 430 (Colo. 1998). In order to determine whether a person was driving, the fact finder will consider the following factors:
- Where vehicle was found
- Where in the vehicle the person was found
- Whether or not the motor vehicle was running
- Any other factor which tends to indicate that the person exercised bodily influence or direction over a motor vehicle based on every day experience
If you are charged with a DUI or DWAI, the fact finder will look to the first three enumerated factors and then anything else that the fact finder sees fit to consider. When all of the factors are weighed together, the fact finder will decide whether you were in “actual physical control” of the motor vehicle. This also means that the motor vehicle does not even need to be in motion in order for the charges to apply. If you are found to be in “actual physical control” of the vehicle, then you drove a motor vehicle for purposes of the “driving” portion of the DUI or DWAI charge.
So, what does this really mean? Sleeping in your car in a parking lot or on the side of the road is not necessarily a defense to DUI or DWAI, especially if you are seated in the driver’s seat with the keys in the ignition. A “no drive” defense may be better if you were sleeping in the back seat of your car or if the vehicle was not running. Unfortunately, there is no brightline rule that says a certain set of facts equate to driving while a different set of facts equate to not driving. Most often whether a person was in actual physical control is left up to the court or the jury at a trial.