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Will I go to jail or be convicted

Denver, CO |

I was sitting in a parked car in front of our hotel. Smoking a cigerette cause it was cold. No keys in ignition and never drove the car at all, Ever!! Didn't get Miranda rights read and they only drew one vial of blood. I told police officer that I didn't drive. He arrested me anyways. My best friend tried to say he had driven but the policeman pushed him aside. I am disabled and am on life sustaining Meds. They refused admission of the medicine and I nearly had a seizure while in custody. I told the police over and over I didn't drive. Why was I arrested!

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Attorney answers 4

Best Answer

You definitely need to have an actual consultation with an attorney. To be convicted of "driving", there need to be "actual physical control" of the motor vehicle. There are numerous important cases on this subject from the late 1990s to early 2000s dealing with situations very similar to yours. Part of "actual physical control" is whether you were capable of operating the motor vehicle at the time. A number of questions come into play - whether the keys were in the ignition, where you were positioned in the vehicle, etc.

Contrary to popular belief, they are not required to advise you of your Miranda rights unless they attempt to interrogate you with questioning. They are supposed to draw two vials of blood in order to allow for you to test the second sample. You definitely have some good defenses in your case from what you have posted and some motions need to be filed in your case. Without actually seeing your discovery, seeing the officers reports, and evaluating the evidence, there is simply no way that any attorney on this site can give you a prediction of whether you will be convicted or even go to jail.

You have too many decent issues to be addressed to handle this without counsel. Apply for the Public Defender if you can not afford an attorney or look around the area to see if you can hire an attorney.



Today I went to court. My attorney Jeremy Rosenthal requested a jury trial. He was completely diligent. He believed my story and with much preparation, the jury decided in 10 minutes that I was NOT GUILTY!!!! I want to thank everyone that gave me advice and references. It feels wonderful to know that the system sometimes does work. I would recommend mr Rosenthal to everyone I know. He is passionate and always prepared.


Driving is not defined by statue, however the term “driver” is. C.R.S. § 42-1-102(27) defines “driver” as “every person who drives or is in actually physical control of a vehicle.”
Although driving has not been defined by statute, Brewer v. Motor Vehicle Division, 720 P.2d 564 (Colo. 1986) followed this definition in defining the term as including “actual physical control.” See also People v. Swain, 959 P.2d 430 (Colo. 1998).
In Brewer v. Motor Vehicle Div., Dept. of Revenue, 720 P.2d 564, 566-67 (Colo. 1986), the Supreme Court held that a motorist found asleep in a vehicle parked on a public street with his motor running was in actual physical control of his car and proof of such actual physical control was sufficient to establish that he “drove a vehicle” within the meaning of drunk driving statute. Brewer based this holding on judicial construction of the term “drove” to mean actual physical control. Id. at 567. Brewer further rejected the notion that the definition of driving is limited to “placing and controlling a vehicle in motion.” Id. at 566. People v. Swain, 959 P.2d 426, 430-31 (Colo. 1998) solidified the holding in Brewer by stating unambiguously that “the term ‘drive’ in section 42-4-1302 means ‘actual physical control’ of a vehicle.” Id. at 431. In Swain, the defendant was found asleep in his vehicle on the side of a highway exit ramp. Id. at 427. Defendant’s vehicle was not running, but his keys were in the ignition and his music was playing loudly. Id. There was no evidence presented regarding whether the vehicle’s lights were turned on or not. Id. On appeal, the Supreme Court held these facts sufficient to establish that Swain “drove” a vehicle within the meaning of Colorado Code § 42-4-1301(1).
Swain further stated that when considering whether a defendant exercised actual physical control over a vehicle, a jury may consider the totality of the circumstances. Swain, 959 P.2d at 428. Factors to be taken into consideration are 1) where the vehicle was found; 2) where in the vehicle the person was found; 3) whether or not the keys were in the ignition; 4) whether or not the motor vehicle was running; 5) whether the heater or air-conditioner was running; 6) whether the windows were up or down 7) whether defendant was conscious, and; 8) any other factor which tends to indicate the person exercised bodily influence or direction over the vehicle. Id. See also People v.VanMatre, 190 P.3d 770, 772-32 (Colo. Ct. App. 2008).
In Motor Vehicle Div., Dept. of Revenue v. Warman, 763 P.2d 558, 560 (Colo. 1988), the court placed emphasis on the on the fourth factor; whether the motor vehicle was running. Id. 561-62. In upholding defendant’s conviction, the court cited several cases from other districts which focused on the vehicle’s running engine status to establish the defendant’s control over the vehicle. Id. at 561-62. However, in Caple v. Motor Vehicle Div., Dept. of Revenue, 804 P.2d 873, 874 (Color. Ct. App. 1990), the court qualified this holding by stating that a motorist could be “driving” under the DUI statute even though the motor vehicle was not running. In Caple, defendant was found asleep behind the wheel with this seat belt fastened. Id. The engine was not running, but the keys were in the ignition turned to the “on” position and the dash lights and radio were on. Id.
In referring to the Warman Court’s prior emphasis on engine status, the Caple Court stated that “the significance of the fact that the engine was running, is that, with an intoxicated person at the wheel, a car could quickly become a dangerous instrumentality.” The court then held that although the motor was not running in this case; the fact that defendant was behind the wheel with his seat belt fastened and the keys turned to the on position, indicated that it would take little effort to put the car in motion. Therefore, defendant was driving within the meaning of the DUI statute. Id.


Since a lot of crucial and important details are left out here it's not possible to accurately predict the outcome of your case whether through a plea bargain or jury trial. It's not possible to predict what a jury would decide based on the few details you mentioned. Consult a DUI attorney who can thoroughly review your case and mount a defense, including challenging revocation of your driver's license at the DMV Express Consent hearing. You only have 7 days after receiving the notice of revocation based on the results of the blood test to request a hearing. Law enforcement is required to draw 2 vials, one for the prosecution, one for the defense to run a retest at an independent lab. It sounds as though you have several defenses available: no keys in ignition at time of contact and no blood for retest among other things.

Assuming when contacted by the police you were sitting in the driver's seat allbeit not for the purpose of driving: The prosecution has to prove you operated or were capable of operating a vehicle. If you were sitting in the driver's seat of a parked car the keys would have to be in the ignition to be found capable of operating the vehicle. A DUI attorney can work toward overcoming the erroneous presumption that you drove the vehicle to its parked position within two hours of consuming alcohol.

Keep in mind, however, that the law is constantly evolving. A jury gets to consider the totality of the circumstances including any factors which tend to indicate the person exercised bodily influence or direction over the vehicle. Were they keys in the ignition at any time when police were approaching the vehicle? Where were the keys, were they ever in your possession or within your reach, in the center console? A DUI attorney can file motions to suppress certain pieces of evidence from ever getting before a jury.

Were you lawfully parked on a city street in front of the hotel or was it private property of the hotel? Did you have any restraints on your driver's license at the time you were approached by the police? Were there any empty alcohol containers in plain sight in the vehicle? Are you the registered owner of the vehicle? Were there any witnesses to any of this (aside from your friend)?

Police do not have to give you Miranda rights unless you are both 1. in custody and 2. being questioned. In other words, they can question you without reading your rights if they have not yet arrested you or taken you into custody and your answers to non-custodial questions can be used agains you. Your other issue regarding being denied medication is a civil matter.

The MCCLUSKEY LAW OFFICE 303-698-1603 is dedicated to helping individuals accused of crimes. However, the only method of establishing an attorney client relationship with the MCCLUSKEY LAW OFFICE is by signing a fee agreement. A response to your inquiry from the MCCLUSKEY LAW OFFICE does not create an attorney client relationship nor does it bind the MCCLUSKEY LAW OFFICE to represent any person or entity. The MCCLUSKEY LAW OFFICE urges those with inquiries to consult with an attorney in person.


Every response you have received here is correct and you should take that advice seriously. Bottome line is that you need an attorney and more specifically, you need a DUI Attorney. The attorneys who have responded would be a great place for you to start your search for a qualified and competent attorney.

I would recommend all of these attorneys without hesitation. If you cannot afford a private attorney, you should apply for a Public Defender as you have a lot of issues here that need to litigated. If you are in need of a free consultation, you may also contact my office as I focus exclusively on DUI Defense and offer free consultations.

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.

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