Request a

Free Case Review

*Indicates Required Fields




Call us today for a

(720) 257-5346



Colorado Criminal Defense Blog

Blog Home

I was asleep in my car, but I got charged with DUI – shouldn’t my case be dropped?


Not everyone who gets charged with a DUI was caught driving, and pulled over by a police officer. Many folks charged with DUI were never pulled over; they were contacted by a law enforcement officer because they were asleep in their vehicle. This can be confusing to some because the “driving” element of DUI seems to imply that one must actually be stopped or at a minimum observed while driving a vehicle. At least in Colorado, this is not the case.


The driving element of a driving under the influence or driving while ability impaired case centers upon a concept known as actual physical control. A person exercises actual physical control over a vehicle when they exercise bodily influence over a vehicle. This is determined based upon a totality of the circumstances test, which considers, among other things, the following factors: where the vehicle was found, where in the vehicle the person was found, whether or not the keys were found in the vehicle’s ignition, and whether or not the vehicle was running. No single factor is considered to be dispositive. Significantly, the prosecution does not have to show any movement by your vehicle to make their DUI case.


For example, if you are stopped with your car off and the keys in the ignition, and you are asleep at the wheel, you will be found to be in actual physical control of the vehicle.


However, if your vehicle is inoperable, then you cannot be found to be in actual physical control of your car; but, if your car can easily be made operable, then actual physical control can be found. For example, a flat tire or an empty tank of gas are not circumstances sufficient to negate the existence of actual physical control.


Individuals who are charged with DUI based upon being stopped while asleep in their vehicle may feel frustrated and confused as to why they are being charged. Oftentimes, a person pulls over because they are too drunk to drive – and they believe that in doing so they are making the right, responsible decision. While doing so does not absolve your responsibility, it can certainly serve as mitigation in your driving under the influence case.


If you have been charged with DWAI, DUI, or DUID, and you were contacted by police while asleep in your car and have questions as to whether or not you could be found to have been in actual physical control of your vehicle, you should contact a Colorado drunk driving defense attorney to discuss the unique facts and circumstances of your case.

Blog Home

Law Office of Kimberly Diego