Written by attorney Jay Marcus Tiftickjian

Colorado DUI Digest: Were you "operating the vehicle" to be convicted of DUI?

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.

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