The average person can come up with a myriad of scenarios where he or she would reasonably believe there is no way for an individual to be criminally charged with driving under the influence (DUI) or driving while ability impaired (DWAI). What if an individual is passed out in the backseat of a shut-off car and the keys are in the front seat? How about a situation where the vehicle was inoperable for any reason but the person was still intoxicated in the driver’s seat?
Colorado law is not so cut and dried on these scenarios – or forgiving. Under state law, a DUI conviction requires proof beyond a reasonable doubt that the defendant drove a vehicle.[i] Colorado court cases have stated that “[t]he term ‘drive’ means to exercise ‘actual physical control’ over a motor vehicle.”[ii]
However, the term “drive” does not require either actual physical movement of an automobile or that the car travel any particular distance.[iii] This has created some interesting and challenging factual scenarios for Colorado DUI attorneys. In Smith v. Charnes[iv] (a revocation of a driver’s license case), the license revocation was sustained because the defendant exercised actual physical control of the vehicle when he was intoxicated and found asleep or unconscious behind the wheel of a stopped car, with the engine running and the lights on. In People v. VanMatre,[v] the defendant was still found guilty of DUI and that he operated a vehicle even though the car could not move because it lacked fuel and the battery was dead. In People v. Swain,[vi] an individual was found by police “either asleep or passed out, in the front seat[,] . . . with his feet near the driver’s side door[,] . . . his head resting towards the passenger’s side door,” with the “keys . . . in the ignition” and the engine turned off. These findings were still sufficient to hold the defendant guilty of driving while ability impaired.
However, the rulings in Charnes, VanMatre and Swain do not mean that evidence of a car not functioning or operating has no place in a DUI trial. If a vehicle could not operate under any circumstances, this proof would be called “an element-negating traverse.”[vii] Essentially, it would serve as evidence negating any proof by the state that a defendant was driving or operating a vehicle. The trial jury would assign whatever weight or value it has to the facts of the case to arrive at a verdict.
In summary, cases where a DUI defendant was found behind the wheel of a non-running or non-functioning car are very fact intensive. Jury instructions and opening/closing arguments in this litigation are also very complex. This is not the type of case a defendant would want to handle without the assistance of a Colorado DUI attorney. If you’re in need of assistance, contact us today.
[i] § 42-4-1301(1)(a), C.R.S. (2025)
[ii] People v. Stewart, 55 P.3d 107, 115 (Colo. 2002), (quoting People v. Swain, 959 P.2d 426, 431 (Colo. 1998))
[iii] People v. Valdez, 2014 COA 125, ¶ 12
[iv] 728 P.2d 1287, 1292 (Colo. 1986)
[v] 190 P.3d 770, 774 (Colo. App. 2008)
[vi] 959 P.2d 426, 431 (Colo. 1998)
[vii] People v. Macias, 2024 Colo. App. LEXIS 2499, ¶ 58, citing People v. Valdez, 2014 COA 125, 2014 COA 125, ¶ 23
