“Drive”

Menu

  1. Introduction
  2. “Vehicle” and “Motor Vehicle”
  3. “Drive”
  4. “Drugs”
  5. “Legal Limit”
  6. Open Container
  7. Driving Under the Influence (DUI)
  8. Driving Under the Influence Per Se (“DUI Per Se”)
  9. Driving While Ability Impaired (DWAI)
  10. Second and Subsequent Offenses
  11. Underage Drinking and Driving (“UDD” or “Baby DUI”)
  12. Strict Liability
  13. Juveniles and Minors
  14. Evidence of Impairment
  15. Standardized Field Sobriety Tests (SFSTs)
  16. Drug Recognition Experts (DREs)
  17. Expressed Consent
  18. Breath Tests
  19. Blood Tests
  20. Prima Facie Case Requirement
  21. Preparing for Trial
  22. Voir Dire
  23. Expert Testimony
  24. Proving Chain of Custody
  25. Double-Refusals

For any impaired driving charge, you must prove the defendant drove a vehicle. This might be more difficult than you think.

Although the statute prohibits “driving” a vehicle while under the influence, Colorado defines “drive” to mean something different than what “drive” might commonly suggest. In Colorado, a person “drives” when they are “in actual physical control of a vehicle.” People v. Swain, 959 P.2d 426, 431 (Colo. 1998); COLJI 42:09, Comment 3.

“Actual physical control” is not defined, and you might not receive a jury instruction to help define it. It is up to you to demonstrate to the jury’s satisfaction that a defendant charged with DUI exercised “actual physical control.” Evidence that a defendant did, in fact, exercise actual physical control over a vehicle includes, but is not limited to:

      • Sitting in the driver’s seat
      • Turning on the engine
      • Shifting the vehicle into gear
      • Turning on accessories, like air conditioning or the windshield wipers
      • Driving the vehicle any distance, although this isn’t required

If a defense attorney claims your case is a “no drive” DUI, ask the defense attorney to explain why they think it is and to provide evidence to support their argument. If you believe you can prove actual physical control and your case proceeds to trial, do not let defense counsel frame the law for the jury in such a way as to require you to prove the defendant physically moved the vehicle. The law does not require the defendant have driven any distance at all to find the defendant “drove” a vehicle under the influence.

Resources