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How to avoid DUI charges when it wasn't DUI worthy

Parker, CO |

My boyfriend and I went up to the mountains, were in jeopardy of running out of gas and getting stranded, it was late and very cold out and we wanted to avoid getting stuck. We finally found a shell gas station where I could use my shell gas card and it did not work. While at the gas station I misplaced the card 2 times and was in the middle of a panic attack, the second time I lost the card my boyfriend got out and was searching for it on the driver side of the car, since I was incapable of pulling myself together long enough to do so myself. Another car started to pull into the gas station so he got into the driver seat and pulled the car up three feet since I had left the car blocking two pumps. He and I both had a little to drink but he was the one in the driver seat when the cops came

He was arrested and released on a summons. He plans on pleading not guilty at his summons in a few weeks and hopes to get a trial in front of a jury. What can we expect at his summons? Will they set bail then? I have seen that before where the person pleads one way or the other and they set bail? Will he serve jail time? Is it worth it to try and talk to the DA and see if we can explain our story and get this dropped? I have no idea why they contacted us I am trying to find some way to get the report before the summons. We had been sitting there quite awhile, It was my grandmothers gas card and since it was used in an unfamiliar zip code it shut it down and flagged it as fraud and then they tried to call her but it was 1am or so her time, so she did not answer. I tried 3 pumps none of them worked because the card. I guess they contacted us because we had been there awhile but the officers first question was how much have you had to drink tonight, not are you ok or do you need help?

Attorney Answers 4


  1. The problem you have is APC - Actual Physical Control. DUI is a strict liability crime. You do not have to have intent or even knowingly commit the offense, you simply just need to do it. The hurdle to get over in this case is whether or not your boyfriend was in APC. Why did the police show up in the first place? What crime was committed? What was the reasonable suspicion for contact?

    There are a lot of areas to attack and you need to consult directly with a DUI attorney. It is my recommendation that you consult with and retain an attorney sooner than later. Take advantage of free consultations so that you can make an educated and informed decision as to the best course of action.

    You may contact my office for a consultation or there are several reputable and qualified attorneys on this forum that can assist you.

    My decision to answer your question does not construe an attorney client relationship. My opinion is based on the facts you have provided. Before making any decisions, you should always consult directly with an experience attorney, either in person or via phone.


  2. First, the law in Colorado is "acutual physical control", which means that even though he was not driving the vehicle on a highway, he had the ability to. Second, bail is not necessary as he was given a summons to appear in court. At the first appearance in court (the date should be on the summons) he will be able to speak to the prosecution. I would highly suggest he retain counsel in this particular case.


  3. In short, best thing to do to increase the chances of avoiding a DUI conviction is to retain a good DUI defense attorney. I would recommend calling a few in your area. Some may offer free initial consultations about your case. d dddddd

    Legal disclaimer: This message does not constitute legal advice and is for informational purposes only. This message does not establish an attorney-client relationship, which can only be established once a retainer agreement has been fully executed between you and this firm.


  4. The issues are not cut and dried and he was actually driving the vehicle (even if only a few feet) when he was contacted. You can ask, but the D.A. is extremely unlikely to drop the case. If your boyfriend is hoping for a jury trial, it may be his best chance of coming out unscathed, but if he plans on handling things without an attorney he is headed for disaster. Even a great trial attorney would be ill advised to represent himself in front of a jury and I suspect your boyfriend is not a great trial attorney. There are just too many problems with trying to act as advocate and defendant at the same time. It's impossible to do well.

    There are many potential issues in the case - starting with reasonable suspicion to contact you in the first place. However, this is not something your boyfriend is going to be able to successfully handle on his own. If he does not have an attorney, you absolutely need to retain one.

    You can reach Harkess & Salter LLC at (303) 531-5380 or info@Harkess-Salter.com. Stephen Harkess is an attorney licensed in the state and federal courts of Colorado. This answer is for general information only and does not create an attorney client relationship between Stephen Harkess or Harkess & Salter LLC and any person. You should schedule a consultation with an attorney to discuss the specifics of your legal issues.

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