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Can you be arrested for an alcohol related driving offense in your own driveway?

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Yes, it's possible. Under Colorado law, DUI can be established by showing that an intoxicated person was in actual physical control of a motor vehicle, even if the car wasn't in drive or moving. Whether you could be convicted depends on the particular circumstances of your case.

Consider the situation in one of Colorado's main cases on the subject, Brewer v. Motor Vehicle Div., Dept. of Rev. In that case, Broomfield police received a call about a car that was parked with its lights on and its engine running in the middle of a street. Inside, police found a man asleep in the driver's seat who proved to be intoxicated. The Colorado Supreme Court held that a Department of Revenue hearing officer properly determined that the man was in actual physical control of his car when he was found by the police officer.

In a later case, the 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."

The question of actual physical control is one of fact that must be determined by a jury. In making that determination, several factors can be taken into account:

  • Whether the defendant had the ability to start the vehicle
  • Whether the defendant was conscious
  • Whether the vehicle was operable
  • Whether the heater or air conditioner were running
  • Whether the windows were up or down

I a person realizes she is too drunk to drive and decides to sleep it off in her car, it's possible she could be charged with DUI or DWAI even though she had no intention of breaking the law and did not put anyone at risk by driving.

The law views any operation of a motor vehicle by an impaired or intoxicated person as a risk. Might the sleeping driver not decide to drive at any moment? After all, alcohol inhibits clear thinking. Or, might they not overestimate their sobriety after a nap? In such a circumstance, they might put others at risk simply by having the potential to drive.

Or, as in the Brewer case, the state might have good reason to believe the sleeping driver must have driven drunk in order to arrive at his current position. The overall circumstances need to be considered in each case.

Many drunk driving cases, particularly cases in which the car was not moving, present legitimate defenses that could bring about a reduction or dismissal of the charges, or an acquittal at trial. If you have been charged with DUI or DWAI, discuss your case with an experienced criminal defense attorney.

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