But I wasn’t driving! What is “Actual Physical Control”?
Often times, people who are arrested or ticketed for a DUI or DWAI were in a vehicle that was not actually moving. Whether sleeping in the car or sitting in the driver’s seat, it can be frustrating to face a DUI or DWAI charge when you were not actually moving the vehicle. However, more often than not, your charge will likely stick - both at the DMV and with the court.
In 1986, the Supreme Court of Colorado found that, for purposes of a DMV license revocation hearing, to “drive” or “drove” included being in “actual physical control” of a vehicle. In this particular case, Brewer v. Motor Vehicle Division, Mr. Brewer was in actual physical control of his car when he was asleep in the driver’s seat of a running car, parked in the middle of the street, with its lights on. In 1998, the Supreme Court of Colorado extended this definition to criminal cases of DUI or DWAI in People v. Swain.
Once the Court extended that definition to criminal cases, however, it faced legal challenges to the actual definition of “actual physical control.” At what point is someone in actual physical control of a vehicle sufficient enough to be considered “driving” under the influence or while impaired?
The Colorado Court of Appeals specifically addressed this in 2008 in People v. VanMatre. In that case, the Court determined the proper standard when determining “actual physical control” of a vehicle for purposes of DUI or DWAI is whether or not the vehicle is reasonably capable of being rendered operable.
As examples, the Colorado Courts have the following factual circumstances to constitute “actual physical control”:
Motor Vehicle Division v. Warman: person in driver’s seat, with motor running and parking lights on while located in a private parking lot;
Caple v. Motor Vehicle Division: person in driver’s seat, with seat belt on, key in ignition with switch in “on” position even though motor was not running;
Notarmuzi v. Division of Motor Vehicles: a person who the officer witnessed walk to her car only with the assistance of a friend and get in started the car while the officer began talking to the friend; actually moving the vehicle or shifting gears was not necessary to be in “actual physical control”.
