Can I Get a DUI While Parked?

by | May 22, 2023 | DUI Defense

Just Because Your Car Isn’t Moving Doesn’t Mean You Aren’t “Driving”

Since the “D” in DUI stands for “driving,” you might think you cannot receive a DUI while parked in Colorado. After all, what danger do you pose to yourself or others while sitting in your non-moving car? How can you face conviction for driving under the influence if you are not driving when police arrest you?

This law may defy logic – there is no such crime as “drunk parking.” But the reality is that you can absolutely face arrest and conviction for DUI while parked. This means doing what you think is right – choosing not to drive after consuming alcohol or smoking marijuana – can still land you in a jail cell.

How is this possible? Because the use of the term “driving” in this instance is somewhat deceptive. If the crime bore the label as judges interpret the statute, the acronym would not be DUI but APCVUI (Actual Physical Control of a Vehicle Under The Influence). While not rolling off the tongue as smoothly, this acronym does explain why and how you can be convicted of drunk driving while sitting in a parked car. 

Related: Can I Get A DUI for Driving High in Colorado?

Driving Means “Actual Physical Control,” Not Movement

Colorado’s primary DUI statute, CRS § 42-4-1301, states that anyone inebriated due to alcohol or drugs and who chooses to drive a motor vehicle while under that influence is committing a crime. Although the terms “drives” or “driving” are not explicitly defined in the statute, the term “driver” is. CRS § 42-1-102(27) defines a driver as not only someone who drives but also as any person with actual physical control of a vehicle. 

Based on that definition, Colorado courts have consistently held that, in the DUI statute, the words ‘drive’ or ‘driving’ mean having ‘actual physical control’ of a motor vehicle. 

As such, if you physically control a vehicle while intoxicated, you may receive a DUI charge and conviction. 

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What Does “Actual Physical Control of a Vehicle” Mean For Getting a DUI While Parked?

If Colorado Springs police arrest and charge you with DUI while parked, your defense may rest on proving you were not physically in control of your vehicle when the arrest occurred. 

Just being in the driver’s seat with your keys in the ignition or even within your reach can lead Colorado Springs police and El Paso County prosecutors to consider you as being in actual physical control of the car. The Colorado Supreme Court holds that a person is in actual physical control of the vehicle when placing themselves behind the steering wheel of a car with the engine running. Why? Because minimal physical activity on the driver’s part would put the vehicle in motion. 

Courts have also held that a driver can be in actual physical control of their vehicle even if the engine isn’t running. For example, one Colorado appellate court found a driver to be guilty of DUI while parked because he was seated behind the steering wheel with the seat belt fastened, the key in the ignition, and the ignition switch turned to the “on” position – without the motor running – because putting the car in motion would take little effort.

But just because your keys are not in the ignition does not mean you are in the clear. According to the Colorado Supreme Court, merely the evidence that the driver intends to drive or move the motor vehicle while intoxicated can lead to a DUI while parked.

James - DUI while parkedTherefore, the difference between an acquittal and a DUI conviction can be where you were in the car or where your keys were. 

Sitting in the driver’s seat while your keys are within your physical reach – even if not in the ignition – will likely be more than sufficient evidence for a DUI conviction. 

However, a judge will look at all the facts – including the vehicle’s location, your location in the vehicle (i.e., driver’s seat or passenger), and the vehicle’s operability – when determining whether you were in actual physical control.

Charged With DUI While Parked? Denying You Were Driving Won’t Get Out of This One.

If you are facing conviction for DUI while parked, you likely feel the charges are unfair. In practical terms, sitting in your car is far better than engaging the motor and driving home, putting yourself and others in harm’s way. But as you can see, the nuances of Colorado’s DUI law mean that your good intentions can still result in time behind bars. 

Your freedom depends on hiring a DUI attorney with the experience and insight to defend you against the charges you face. As former DUI prosecutors, the criminal defense lawyers at James Newby Law in Colorado Springs know how to protect your rights, giving you the best chance for an acquittal, dismissal, or reduction of charges.  

Contact us today to schedule your free, confidential DUI consultation

James Newby
James Newby

James Newby is a criminal defense attorney in Colorado Springs and the managing attorney of the criminal justice law firm James Newby Law. James got into law because of a deep-rooted passion for helping good people that may have made a poor choice that could have lasting consequences.