The “No Driving Defense” in Colorado DUI Cases

In this article, our Colorado criminal defense attorneys discuss:

• 1. What is the “no driving” defense in Colorado DUI cases?
• 2. Can prosecutors prove I was driving if the police did not see me?
• 3. How else can I fight DUI charges?
• 4. What are the penalties?

1. What is the “no driving” defense in Colorado DUI cases?

Colorado’s “no driving” defense to “driving under the influence” charges is simply that the defendant may have been “under the influence” – but he/she was not driving at the time.

That the defendant was driving is a key element in cases involving:

• DUI or DUI per se,
• DWAI,
• UDD (underage DUI),
• vehicular assault, or
• vehicular homicide.

So when the police did not actually see or record the defendant driving, the defendant’s Colorado DUI defense lawyer may be able to use the following “no driving” defenses:

• The defendant was just taking a nap in the car.
• The defendant was waiting to sober up and had no intention of driving until then.
• The defendant had the engine turned on to warm up the vehicle, not to drive it.
• The car was driven by someone else who left the vehicle before the police arrived.
• The car was driven by someone else who switched places with the defendant before the police arrived.
• The defendant did not begin drinking or ingesting drugs until after he/she stopped driving.

As long as Colorado district attorneys cannot prove beyond a reasonable doubt that the defendant was driving, the drunk driving or drugged driving charge must be dismissed.¹

2. Can prosecutors prove I was driving if the police did not see me?

Prosecutors have a number of tricks to get around the lack of a witness to a DUI suspect’s driving. A court will look at the “totality of the circumstances” to determine whether the defendant had put the vehicle in motion – or you intended to do so.²

Evidence that a DUI defendant operated a vehicle while under the influence may include a combination of:

• Usual indicators of impairment, such as:
  • The smell of alcohol and/or marijuana;
  • Empty containers of alcohol in the car;
  • Drug paraphernalia in the car;
• The defendant’s location – such as being parked at an odd angle or being on the side of the road with the engine running;
• The defendant’s statements;
• Statements of other witnesses (either passengers in the car or outside observers);
• The defendant was asleep with the engine running;
• The defendant was trying to put the keys into the ignition; or
• The defendant’s motor vehicle was involved in an accident, and he/she was the only person at the scene.

Typical evidence prosecutors rely on to prove that the defendant was driving include police reports, dashcam video, traffic surveillance video, and eyewitness reports.

3. How else can I fight DUI charges?

There are many possible strategies that DUI defense attorneys use to fight drunk/drugged driving charges if the “no driving defense” is inapplicable. Five common defenses include:

1. Law enforcement lacked reasonable suspicion to pull over the defendant (for example, the defendant committed no traffic violation).
2. Law enforcement lacked probable cause to make the DUI arrest.
3. The police officers did not administer the field sobriety tests correctly.
4. The defendant had a medical condition (such as GERD) that caused the breath test to return an inaccurately high BAC (blood alcohol content) result.
5. The chemical test results from the breathalyzer were unreliable because it had not been calibrated recently, or the blood tests were contaminated by the lab techs.

4. What are the penalties?

Under Colorado DUI laws, a first time DUI conviction is a misdemeanor punishable by:

• 5 days to 1 year of jail time;
• $600 to $1,000 in fines;
• 48 to 96 hours of community service; and
• 9-month driver’s license suspension.
• (Defendants with a BAC of at least 0.15% are classified as a persistent drunk driver (PDD) and sentenced as repeat-DUI offenders.)

Meanwhile, a first offense DWAI is a misdemeanor punishable by:

• 2 to 180 days in jail;
• $200 to $500 in fines;
• 24 to 48 hours of community service; and
• 8 DMV points.

Second- and third-time DUIs and DWAIs are also misdemeanors. But they carry higher jail sentences, steeper fines, more community service hours, and a longer revocation of driving privileges.

Note that fourth-time DUIs and DWAI’s – or any drunk/drugged driving accident that results in a serious injury – are class 4 felonies punishable by 2 to 6 years in Colorado State Prison and/or $2,000 to $500,000 in fines. And if the accident causes a fatality, it is a class 3 felony carrying 4 to 12 years in prison and/or $3,000 to $750,000 in fines.

Finally, first-time offenses of underage drinking and driving (UDD) are class A traffic infractions. The penalty is:

• $150 in fines;
• 24 hours of community service;
• 3-month license revocation; and
• 4 DMV points

But successive UDD convictions are class 2 traffic misdemeanors, carrying a minimum of 10 days in jail, up to $300, up to 120 hours of community service, and a 6-month license revocation.

For any DUI offense, the only way defendants can keep their driver’s license is to win both the criminal case as well as the DMV’s express consent hearing (which is completely separate from the criminal case). But even if the license gets suspended, defendants may be able to resume driving with an ignition interlock device in their car.³

If you have been charged with driving while under the influence of alcohol or drugs, reach out to our Colorado DUI attorneys for help. We have offices in Denver, Colorado Springs, Loveland, and throughout the state.

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